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SELECTED CASES 



IN 



CONSTITUTIONAL LAW 




BY 



H. EDGAR BARNES, L. L. B. 

Wharton School, University of Pennsylvania 



AND 



BYRON A. MILNER, B. S. IN ECON., L. L. B, 

Wharton School, University of Pennsylvania 




SELECTED CASES 



IN 



CONSTITUTIONAL LAW 




BY 



H. EDGAR BARNES, L. L. B. 

Wharton School, University of Pennsylvania 



AND 



BYRON A. MILNER, B. S. IN ECON., L. L. B. 

Wharton School, University of Pennsylvania 



4 



ifl-fc 



•V 



Copyright 1910 

BY 

H. Edgar Barnes and Byron A Milner 



Lyon & Armor 
philadelphia 



CC.U278204 



PREFACE 

This collection of cases in Constitutional Law is designed pri- 
marily for the use of students in the course in elementary constitu- 
tional law as given in the Wharton School of Finance and Com- 
merce of the University of Pennsylvania. The aim of the compilers 
has been to present a brief statement of the salient facts of the lead- 
ing cases, and to include generally only those portions of the opin- 
ions of the court as are related to the particular subject or point 
under discussion. In many cases, however, such as Marbury v. 
Madison, McCulloch v. Maryland, and Gibbons v. Ogden, the opin- 
ion has been given at greater length because of the importance of 
the principles established and in order to show the steps in the rea- 
soning of the court. It has been impossible to include in this col- 
lection many important and historical cases, but it is hoped that the 
cases herein contained will enable the student to form an idea of 
the function of the courts in interpreting the meaning of the Con- 
stitution. 

H. E. B. 

July i, 1910. B. A. M. 



Selected Cases in Constitutional Law. 



TABLE OF CONTENTS. 



Section I. 

Section II. 

Section III. 

Section IV. 

Section V. 

Section VI. 

Section VII. 



Section 



Section II. 



Section III. 

Section IV. 

Section V. 

Section VI. 



PAGE 

Table of Cases 6 

Constitution of the United States 7 

CHAPTER I. 

The Executive Department. 

Manner of Choosing the President 20 

The President's Power of Appointment ... 21 
The President's Diplomatic and Treaty-Making 

Powers 33 

The President's Executive Power 38 

The President's Legislative Power 42 

The President's Pardoning Power 44 

The President's Military Power 47 

CHAPTER II. 

The Legislative Department. 

Power of Congress over Taxation ...... 54 

Sub-Section A. Extent of the Federal Power 54 

Sub-Section B. Limitations of the State Power 60 

Sub-Section C. Direct and Indirect Taxes . 70 

Power of Congress over Commerce 78 

Sub-Section A. Extent of the Federal Power 78 

1. In General 78 

2. The Meaning of Commerce 88 

3. When Commerce is Interstate or Foreign 97 
Sub-Section B. Extent of the Power of the 

States over Commerce 106 

1. The State-Taxing Power as Affecting 

Commerce 106 

2. The State Police Power as Affecting 

Commerce 120 

Bills of Credit 137 

Power of Congress over the Currency . . . .143 

The War Power of Congress 149 

The Power of Congress over the Territories . 150 
Sub-Section A. The Insular Tariff Cases . . 150 
Sub-Section B. Extension of the Constitution 

to the Territories 157 



Selected Cases in Constitutional Law. 



Section VII. The Implied Powers of Congress 161 

Sub-Section A. Exclusion of Foreigners . .161 
Sub-Section B. Right of Eminent Domain . 163 
Sub-Section C. The Power to Make all Laws 
Necessary and Proper for Carrying 
into Execution the Enumerated 

Powers 165 

Section VIII. Restrictions on the Powers of Congress . . .166 
Sub-Section A. The Bill of Rights .... 166 
Sub-Section B. Meaning of Ex-Post-Facto .169 
Sub-Section C. Meaning of Due Process of 

Law 171 

CHAPTER III. 
The Judicial Department. 

Section I. Original Jurisdiction of the Supreme Court . .175 
Sub-Section A. In Cases Affecting Ambassa- 
dors, other Public Ministers and 

Consuls 175 

Section II. The Appellate Jurisdiction of the Supreme 

Court 178 

Sub-Section A. Over State Courts 178 

Sub-Section B. Suits Between States . . . 183 
Sub-Section C. Suits Between the United 

States and a State 188 

Section III. The Law Administered by the Federal Courts 192 
Section IV. Suits Against a State by One of Its Own 

Citizens 195 

Section V. Power of the Courts to Declare an Act of 

the Legislature Null and Void 199 

CHAPTER IV. 

Privileges and Immunities Guaranteed by the Constitution. 

Section I. Trial by Jury 200 

Section II. Civil Rights 202 

Section III. Other Rights 204 

CHAPTER V. 

State Comity. 

Section I. Full Faith and Credit shall be given to the 
Acts, Records and Judgments of another 

State 205 

Section II. Privileges and Immunities of Citizens .... 207 
Section III. Extradition between States 209 



Selected Cases in Constitutional Law. 



TABLE OF CASES. 



Austin v Tennessee 

Barron v Baltimore 

Blake i> United States 

Bors v. Preston 

Briscoe v. Bank of Kentucky 137 

Brown v. Houston 98 

Brown v. Maryland 106 

Calder v. Bull 169 

California v. Central Pacific R. 

Co. 68 
Champion v. Ames 95 
Chinese Exclusion Case 161 
Civil Rights Cases 202 
Coe v. Errol 97 
Collector v. Day 54 
Cooley v. Board of Wardens 121 
Corfield v. Coryell 207 
Daniel Ball, The 102 
Debs, In re 41 
De Lima v. Bidwell 150 
Dooley v. United States 156 
Downes v. Bidwell 153 
Field v. Clark 42 
Garland, Ex parte 44 
Gibbons v. Ogden 78 
Gloucester Ferry Co. v. Penn- 
sylvania 105 
Gonzales v. Williams 160 
Hanley v. Donoghue 205 
Hanley v. Railway Co. 119 
Hans v. Louisiana 195 
Hawaii v. Mankichi 158 
Hepburn v. Griswold 143 
Hylton v. United States 70 
Insular Cases 150 
Jones v. United States 33 
Juilliard v. Greenman 144 
Kentucky v. Dennison . 209 
Knowlton v. Moore 76 
Kohl v. United States 163 
Leeal Tender Cases 143 
Lehigh Valley R. Co. v. Penn- 
sylvania 117 
Leisy v. Hardin 125 
Lord v. Steamship Co. 105 



Page 




Page 


130 


Luther v. Borden 


47 


166 


McCready v. Virginia 


88 


30 


McCulloch v. Maryland 


60 


175 


McPherson v. Blacker 


20 



Maine v. Grand Trunk R. Co. 116 

Marbury v. Madison 21 

Martin v. Hunter's Lessee 178 

Martin v. Mott 50 

Milligan, Ex Parte 200 

Minnesota v. Barber 135 
Morman Church .v. United 

States 157 
Murray's Lessee v. Hoboken Land 

and Improvement Co. 17 1 
Neagle, In re 38 
New Hampshire v. Louisiana 183 
New York v. Louisiana 183 
Northern Securities Co. v. Unit- 
ed States 93 
Paul v. Virginia 94 
Pennsylvania v. Wheeling, Etc., 

Bridge Co. 86 
Pensacola Telegraph Co. v. Wes- 
tern Union Telegraph Co. 83 
People, ex rel., v. Gerke 35 
Pollock v. Farmers' Loan and 

Trust Co. 7 1 
Prizes Cases M9 
Robbins v. Shelby County Tax- 
ing Dist. 112 
Schollenberger v. Pennsylvania 132 
State Tonnage Tax Cases 119 
Swift V. Tyson 192 
Thompson v. Union Pacific R. 

Co. 65 
Union Pacific R. Co. v. Penis- 
ton 68 
United States v. Germaine 27 
United States v. E. C. Knight 

Co. 89 

United States v. Texas 188 

Veazie Bank v. Fenno 57 

Willson v. Blackbird Creek 

Marsh Co. 120 



Selected Cases in Constitutional Law. 



CONSTITUTION OF THE UNITED STATES. 



We the people of the United States, in order to form a more per- 
fect union, establish justice, insure domestic tranquillity, pro- 
vide for the common defence, promote the general welfare, 
and secure the blessings of liberty to ourselves and our pos- 
terity, do ordain and establish this Constitution for the United 
States of America. 

ARTICLE I. 

Section i. All legislative powers herein granted, shall be vested 
in a congress of the United States, which shall consist of a senate 
and house of representatives. 

Sec. 2. The house of representatives shall be composed of mem- 
bers chosen every second year by the people of the several states ; 
and the electors in each state have the qualifications requisite for 
electors of the most numerous branch of the state legislature. 

No person shall be a representative who shall not have attained 
to the age of twenty-five years, and been seven years a citizen of 
the United States, and who shall not, when elected, be an inhabitant 
of that state in which he shall be chosen. 

[Representatives and direct taxes shall be apportioned among the 
several states which may be included within this union, according 
to their respective numbers, which shall be determined by adding 
to the whole number of free persons, including those bound to ser- 
vice for a term of years, and excluding Indians not taxed, three- 
fifths of all other persons.] 1 The actual enumeration shall be made 
within three years after the first meeting of the congress of the 
United States, and within every subsequent term of ten years, in 
such a manner as they shall by law direct. The number of repre- 
sentatives shall not exceed one for every thirty thousand, but each 
state shall have at least one representative, and until such enumer- 
ation shall be made, the state of New Hampshire shall be entitled 
to choose three, Massachusetts eight. Rhode Island and Providence 
Plantations one, Connecticut five. New York six, New Jersey four, 
Pennsylvania eight, Delaware one, Mainland six, Virginia ten, 
North Carolina five, South Carolina five, and Georgia three. 

When vacancies happen in the representation from any state, the 
executive authority thereof shall issue writs of election to fill such 
vacancies. 

The house of representatives shall choose their speaker and other 
officers ; and shall have the sole power of impeachment. 

Sec. 3. The senate of the United States shall be composed of 

1— The clause included in brackets is amended by the fourteenth amendment, second 
section. > 



8 Selected Cases in Constitutional Law. 

two senators from each state, chosen by the legislature thereof, for 
six years ; and each senator shall have one vote. 

Immediately after they shall be assembled in consequence of the 
first election, they shall be divided as equally as may be into three 
classes. The seats of the senators of the first class shall be vacated 
at the expiration of the second year, of the second class at the 
expiration of the fourth year, and of the third class at the expira- 
tion of the sixth year, so that one-third may be chosen every second 
year ; and if vacancies happen, by resignation or otherwise, during 
the recess of the legislature of any state, the executive thereof may 
make temporary appointments until the next meeting of the legis- 
lature, which shall then fill such vacancies. 

No person shall be a senator who shall not have attained to the 
age of thirty years, and been nine years a citizen of the United 
States, and who shall not, when elected, be an inhabitant of that 
state for which he shall be chosen. 

The vice-president of the United States shall be president of the 
senate, but shall have no vote, unless they be equally divided. 

The senate shall choose their other officers, and also a president 
pro tempore, in the absence of the vice-president, or when he shall 
exercise the office of president of the United States. 

The senate shall have the sole power to try all impeachments. 
When sitting for that purpose they shall be on oath or affirmation. 
When the president of the United States is tried, the chief justice 
shall preside ; and no person shall be convicted without the concur- 
rence of two-thirds of the members present. 

Judgment in cases of impeachment shall not extend further than 
to removal from office, and disqualification to hold and enjoy any 
office of honor, trust, or profit, under the United States ; but the 
party convicted shall nevertheless be liable and subject to indict- 
ment, trial, judgment and punishment, according to law. 

Sec. 4. The times, places, and manner of holding elections for 
senators and representatives, shall be prescribed in each state by 
the legislature thereof, but the congress may at any time by law 
make or alter such regulations except as to the places of choosing 
senators. 

The congress shall assemble at least once in every year, and such 
meeting shall be on the first Monday in December, unless they 
shall by law appoint a different day. 

Sec. 5. Each house shall be the judge of the elections, returns, 
and qualifications of its own members, and a majority of each shall 
constitute a quorum to do business ; but a smaller number may 
adjourn from day to day, and may be authorized to compel the 
attendance of absent members, in such manner, and under such 
penalties as each house may provide. 

Each house may determine the rules of its proceedings, punish 
its members for disorderly behavior, and, with the concurrence of 
two-thirds, expel a member. 

Each house shall keep a journal of its proceedings, and from time 
to time publish the same, excepting such parts as may in their judg- 
ment require secrecy; and the yeas and nays of the members of 



Selected Cases in Constitutional Law. 9 

either house on any question, shall, at the desire of one-fifth of those 
present, be entered on the journal. 

Neither house, during the session of congress, shall, without the 
consent of the other, adjourn for more than three days, nor to any 
other place than that in which the two houses shall be sitting. 

Sec. 6. The senators and representatives shall receive a compen- 
sation for their services, to be ascertained by law, and paid out of 
the treasury of the United States. They shall, in all cases, except 
treason, felonv. and breach of the peace, be privileged from arrest 
during their attendance at the session of their respective houses, 
and in going to and returning from the same ; and for any speech or 
debate in either house, they shall not be questioned in any other 
place. 

No senator or representative shall, during the time for which he 
was elected, be appointed to any civil office under the authority of 
the United States, which shall have been created, or the emolument 
whereof shall have been increased during such time ; and no person 
holding any office under the United States, shall be a member of 
either house during* his continuance in office. 

Sec. 7. x\ll bills for raising revenue shall originate in the house 
of representatives ; but the senate may propose or concur with 
amendments as on other bills. 

Every bill which shall have passed the house of representatives 
and the senate, shall, before it become a law, be presented to the 
president of the United States ; if he approve he shall sign it, but 
if not, he shall return it, with his objections, to that house in which 
it shall have originated, who shall enter the objections at large on 
their journal and proceed to reconsider it. If, after such reconsid- 
eration two-thirds of that house shall agree to pass the bill, it shall 
be sent, together with the objections, to the other house, by which 
it shall likewise be reconsidered, and, if approved by two-thirds of 
that house, it shall become a law. But in all such cases, the votes 
of both houses shall be determined by yeas and nays, and the 
names of the persons voting for and against the bill, shall be 
entered on the journal of each house respectively. If any bill shall 
not be returned by the president within ten days (Sunday excepted) 
after it shall have been presented to him, the same shall be a law, 
in like manner as if he had signed it, unless the congress by their 
adjournment prevent its return, in which case it shall not be a law. 

Every order, resolution, or vote, to which the concurrence of the 
senate and house of representatives may be necessary (except on a 
question of adjournment) shall be presented to the president of the 
United States ; and before the same shall take effect, shall be 
approved by him, or being disapproved by him, shall be repassed by 
two-thirds of the senate and house of representatives, according to 
the rules and limitations prescribed in the case of a bill. 

Sec. 8 The congress shall have power : — 

To lay and collect taxes, duties, imposts, and excises, to pay the 
debts and provide for the common defence and general welfare of 



10 Selected Cases in Constitutional Law. 

the United States ; but all duties, imposts, and excises shall be uni- 
form throughout the United States ; 

To borrow money on the credit of the United States ; 

To regulate commerce with foreign nations, and among the several 
states, and with the Indian tribes ; 

To establish an uniform rule of naturalization, and uniform laws 
on the subject of bankruptcies throughout the United States ; 

To coin money, regulate the value thereof, and of foreign coin, 
and fix the standard of weights and measures ; 

To provide for the punishment of counterfeiting the securities, 
and current coin of the United States ; 

To establish post-offices and post-roads ; 

To promote the progress of science and useful arts, by securing 
for limited times to authors and inventors the exclusive right to 
their respective writings and discoveries ; 

To constitute tribunals inferior to the supreme court ; 

To define and punish piracies and felonies committed on the high 
seas, and offences against the law of nations ; 

To declare war, grant letters of marque and reprisal, and make 
rules concerning captures on land and water ; 

To raise and support armies ; but no appropriation of money, to 
that use, shall be for a longer term than two years ; 

To provide and maintain a navy; 

To make rules for the government and regulation of the land and 
naval forces ; 

To provide for calling forth of the militia to execute the laws of 
the union, suppress insurrections and repel invasions ; 

To provide for organizing, arming and disciplining the militia, 
and for governing such part of them as may be employed in the ser- 
vice of the United States, reserving to the states respectively, the 
appointment of the officers, and the authority of training the militia 
according to the discipline prescribed by congress ; 

_ To exercise exclusive legislation in all cases whatsoever, over such 
district (not exceeding ten miles square) as may, by cession of par- 
ticular states, and the acceptance of congress, become the seat of 
the government of the United States, and to exercise like authority 
over all places purchased by the consent of the legislature of the 
state in which the same shall be, for the erection of forts, maga- 
zines, arsenals, dock yards, and other needful buildings ; — And 

To make laws which shall be necessary and proper for carrying 
into execution the foregoing powers, and all other powers vested 
by this constitution in the government of the United States, or in 
any department or officer thereof. 

Sec. 9. The migration or importation of such persons as any of 
the states now existing shall think proper to admit, shall not be 
prohibited by the congress prior to the year one thousand eight 
hundred and eight ; but a tax or duty may be imposed on such im- 
portation, nor exceeding ten dollars for each person. 

The privilege of the writ of habeas corpus shall not be suspended, 
unless when, in cases of rebellion or invasion, the public safety 
may require it. 



Selected Cases in Constitutional Law. 11 

No bill of attainder or ex post facto law, shall be passed. 

No capitation or other direct tax shall be laid, unless in propor- 
tion to the census or enumeration hereinbefore directed to be taken. 

No tax or duty shall be laid on articles exported from any state. 

No preference shall be given by any regulation of commerce or 
revenue to the ports of one state over those of another ; nor shall 
vessels bound to or from one state be obliged to enter, clear, or pay 
duties in another. 

No money shall be drawn from the treasury, but in consequence 
of appropriations made by law ; and a regular statement and account 
of the receipts and expenditures of all public money shall be pub- 
lished from time to time. 

No title of nobility shall be granted by the United States ; and 
no person holding any office of profit or trust under them, shall, 
without the consent of the congress, accept of any present, emolu- 
ment, office, or title, of any kind whatever, from any king, prince, 
or foreign state. 

Sec. 10. No state shall enter into any treaty, alliance, or confed- 
eration ; grant letters of marque and reprisal ; coin money ; emit 
bills of credit ; make anything but gold and silver coin a tender in 
payments of debats ; pass any bill of attainder, ex post facto law, or 
law impairing the obligation of contracts, or grant any title of 
nobility. 

No state shall, without the consent of the congress, lay any im- 
posts or duties on imports or exports, except what may be absolute- 
ly necessary for executing its inspection laws ; and the net produce 
of all duties and imposts, laid by any state on imports or exports, 
shall be for the use of the treasury of the United States ; and all 
such laws shall be subject to the revision and control of the con- 
gress. No state shall, without the consent of congress, lay any 
duty of tonnage, keep troops or ships of war in time of peace, enter 
into any agreement or compact with another state or with a foreign 
power, or engage in war, unless actually invaded, or in SL;ch immi- 
nent danger as will not admit of delay. 



ARTICLE II. 

Section i. The executive power shall be vested in a president 
of the United States of America. He shall hold office during 
the term of four years, and, together with the vice-president, chosen 
for the same term, be elected as follows: — 

Each state shall appoint, in such manner as the legislature thereof 
may direct, a number of electors, equal to the whole number of 
senators and representatives to which the state may be entitled in 
the congress ; but no senator or representative or person holding an 
office of trust or profit under the United States, shall be appointed 
an elector. 

[The electors shall meet in their respective states, and vote by 
ballot for two persons, of whom one at least shall not be an inhabi- 
tant of the same state with themselves. And thev shall make a list 



12 Selected Cases in Constitutional Law. 

of all the persons voted for, and of the number of votes for each ; 
which list they shall sign and certify, and transmit sealed to the 
seat of government of the United States, directed to the president 
of the senate. The president of the senate shall, in the presence of 
the senate and house of representatives, open all the certificates, and 
the votes shall then be counted. The person having the greatest 
number of votes shall be the president, is such number be a majority 
of the whole number of electors appointed ; and if there be more 
than one who have such majority, and have an equal number of 
votes, then the house of representatives shall immediately choose, 
by ballot, one of them for president ; and if no person have a 
majority, then from the five highest on the list, the said house shall, 
in like manner, choose the president. But in choosing the presi- 
dent, the votes shall be taken by states, the representation from 
each state having one vote ; a quorum for this purpose shall consist 
of a member or members from two-thirds of the states, and a 
majority of all the states shall be necessary to a choice. In every 
case, after the choice of the president, the person having the great- 
est number of votes of the electors shall be the vice-president. But 
if there should remain two or more who have equal votes, the 
senate shall choose from them, by ballot, the vice-president. J 1 

The congress may determine the time of choosing the electors, 
and the day on which they shall give their votes ; which day shall be 
the same throughout the United States. 

No person except a natural-born citizen, or a citizen of the United 
States at the time of the adoption of this constitution, shall be 
eligible to the office of president; neither shall any person be eli- 
gible to that office who shall not have attained the age of thirty- 
five years, and been fourteen years a resident within the United 
States. 

In case of the removal of the president from office, or of his 
death, resignation, or inability to discharge the powers and duties 
of the said office, the sam<3 shall devolve on the vice-president, and 
the congress may by law provide for the case of removal, death, 
resignation, or inability, both of the president and vice-president, 
declaring what officer shall then act as president, and such officer 
shall act accordingly, until the disability be removed* or a president 
shall be elected. 

The president shall, at stated times, receive for his services a 
compensation, which shall neither be increased nor diminished 
during the period for which he shall have been elected, and he shall 
not receive within that period any other emolument from the United 
States or any of them. 

Before he enter on the execution of his office, he shall take the 
following oath or affirmation : — 

"I do solemnly swear (or affirm) that I will faithfully execute the 
office of president of the United States, and will, to the best of my 
ability, preserve, protect, and defend the constitution of the United 
States." 

1— This clause has heen superseded by the twelfth amendment. 



Selected Cases in Constitutional Law. 13 

Sec. 2. The president shall be commander-in-chief of the army 
and navy of the United States, and of the militia of the several 
states, when called into the actual service of the United States ; he 
may require the opinion in writing of the principal officers in each 
of the executive departments, upon any subject relating to the 
duties of their respective offices ; and he shall have power to grant 
reprieves and pardons for offences against the United States, except 
in cases of impeachment. 

He shall have power, by and with the advice and consent of the 
senate, to make treaties, provided two-thirds of the senators pres- 
ent concur ; and he shall nominate, and, by and with the advice and 
consent of the senate, shall appoint ambassadors, other public min- 
isters and consuls, judges of the supreme court, and all other officers 
of the United States, whose appointments are not herein otherwise 
provided for and which shall be established by law. But the con- 
gress may, by law, vest the appointment of such inferior officers as 
they think proper, in the president alone, in the courts of law, or 
in the heads of departments. 

The president shall have power to fill up all vacancies that may 
happen during the recess of the senate, by granting commissions, 
which shall expire at the end of their next session. 

Sec. 3. He shall from time to time give to the congress infor- 
mation of the state of the union, and recommend to their consider- 
ation such measures as he shall judge necessary and expedient. He 
may, on extraordinary occasions, convene both houses, or either of 
them ; and in case of disagreement between them, with respect to 
the time of adjournment, he may adjourn them to such time as he 
shall think proper. He shall receive ambassadors and other public 
ministers. He shall take care that the laws be faithfully executed ; 
and shall commission all the officers of the United States. 

Sec. 4. The president, vice-president, and all civil officers of 
the United States, shall be removed from office on impeachment 
for, and conviction of, treason, bribery, or other high crimes and 
misdemeanors. 

ARTICLE III. 

Section i. The judicial power of the United States shall be 
vested in one supreme court, and in such inferior courts as the con- 
gress may, from time to time, ordain and establish. The judges, 
both of the supreme and inferior courts, shall hold their offices 
during good behavior; and shall, at stated times, receive for their 
services a compensation which shall not be diminished during their 
continuance in office. 

Sec. 2. The judicial power shall extend to all cases, in law and 
equity, arising under this constitution, the laws of the United 
States^ and treaties made, or which shall be made, under their 
authority ; to ail cases affecting ambassadors, other public ministers, 
and consuls; to all cases of admiralty and maritime jurisdiction; 
to controversies to which the Lmited States shall be a party ; to 
controversies between two or more states, between a state and citi- 



14 Selected Cases in Constitutional Law. 

zens of another state, between citizens of different states, between 
citizens of the same state claiming lands under grants of different 
states, and between a state, or the citizens thereof, and foreign 
states, citizens, or subjects. 

In all cases affecting ambassadors, other public ministers and 
consuls, and those in which a state shall be party, the supreme 
court shall have original jurisdiction. In all the other cases before 
mentioned, the supreme court shall have appellate jurisdiction, 
both as to law and fact, with such exceptions, and under such regu- 
lations as the congress shall make. 

The trial of all crimes, except in cases of impeachment, shall be 
by jury : and such trials shall be held in the state where the said 
crimes shall have been committed ; but when not committed within 
any state, the trial shall be at such place or places as the congress 
may by law have directed. 

Sec. 3, Treason against the United States shall consist only in 
levying war against them, or in adhering to their enemies, giving 
them aid and comfort. No person shall be convicted of treason 
unless on the testimony of two witnesses to the same overt act, or 
on confession in open court. 

The congress shall have power to declare the punishment of trea- 
son, but no attainder of treason shall work corruption of blood, or 
forfeiture, except during the life of the person attainted. 



ARTICLE IV. 

Section i. Full faith and credit shall be given in each state to 
the public acts, records, and judicial proceedings of every other 
state. And the congress may, by general laws, prescribe the man- 
ner in which such acts, records, and proceedings shall be proved, 
and the effect thereof. 

Sec. 2 1 . The citizens of each, state shall be entitled to all privi- 
leges and immunities of citizens in the several states. 

A person charged in any state with treason, felony, or other 
crime, who shall flee from justice, and be found in another state, 
shall, on demand of the executive authority of the state from which 
he fled, be delivered up, to be removed to the state having juris- 
diction of the crime. 

No person held to service or labor in one state, under the laws 
thereof, escaping into another, shall, in consequence of any law or 
regulation therein, be discharged from such service or labor, but 
shall be delivered up on claim of the party to whom such service or 
labor may be due 

Sec. 3. New states may be admitted by the congress into this 
union ; but no new state shall be formed or erected within the 
jurisdiction of any other state ; nor any state be formed by the 
junction of two or more states, or parts of states, without the con- 
sent of the legislatures of the states concerned, as well as of the 
congress. 

The congress shall have power to dispose of, and make all needful 



Selected Cases in Constitutional Law. 15 

rules and regulations respecting the territory or other property 
belonging to the United States ; and nothing in this constitution 
shall he so construed as to prejudice any claims of the United 
States or of any particular state. 

Sec. 4. The United States shall guaranty to every state in this 
union, a republican form of government, and shall protect each of 
them against invasion ; and on application of the legislature, or of 
the executive (when the legislature cannot be convened) against 
domestic violence. 



ARTICLE V. 

The congress, whenever two-thirds of both houses shall deem it 
necessary, shall propose amendments to this constitution, or, on the 
application of the legislatures of two-thirds of the several states, 
shall call a convention for proposing amendments, which, in either 
case, shall be valid to all intents and purposes, as part of this con- 
stitution, when ratified by the legislatures of three-fourths of the 
several states, or by conventions in three-fourths thereof, as the one 
or the other mode of ratification may be proposed by the congress ; 
provided, that no amendment, which may be made prior to the year 
one thousand eight hundred and eight, shall in any manner affect 
the first and fourth clauses in the ninth section of the first article ; 
and that no state, without its consent, shall be deprived of its equal 
suffrage in the senate. 



ARTICLE VI. 

All debts contracted, and engagements entered into, before the 
adoption of this constitution, shall be as valid against the United 
States, under this constitution, as under the confederation. 

This constitution, and the laws of the United States which shall 
be made in pursuance thereof, and all treaties made or which shall 
be made under the authority of the United States, shall be the 
supreme law of the land; and the judges in every state shall be 
bound therby, anything in the constitution or laws of any state to 
the contrary notwithstanding. 

The senators and representatives before mentioned, and the mem- 
bers of the several state legislatures, and all executive and judicial 
officers, both of the United States and of the several states, shall be 
bound by oath or affirmation, to support this constitution ; but no 
religious test shall ever be required as a qualification to any office 
or public trust under the United States. 



16 Selected Cases in Constitutional Law. 

ARTICLE VII. 

The ratification of the conventions of nine states, shall be suffi- 
cient for the establishment of this constitution between the states 
so ratifying the same. 

Done in convention, by the unanimous consent of the states present, 
the seventeenth day of September, in the year of our Lord one 
thousand seven hundred and eighty-seven, and of the independ- 
ence of the United States of ^America the twelfth. In witness 
whereof, we have hereunto subscribed our names. 

[Signed by] George Washington, President, 

and Deputy from Virginia, 
and by thirty-nine delegates. 



ARTICLES IN ADDITION TO, AND AMENDMENT OF, 

THE CONSTITUTION OF THE UNITED 

STATES OF AMERICA. 

ARTICLE I. 

Congress shall make no law respecting an establishment of re- 
ligion, or prohibiting the free exercise thereof ; or abridging the 
freedom of speech, or of the press ; or the right of the people peace- 
ably to assemble, and to petition the government for a redress of 
grievances. 

ARTICLE II. 

A well regulated militia being necessary to the security of a free 
state, the right of the people to keep and bear arms shall not be 
infringed. 

ARTICLE III. 

No soldier shall, in time of peace, be quartered in any house 
without the consent of the owner ; nor in time of war, but in a 
manner to be prescribed by law. 

ARTICLE IV. 

The right of the people to be secure in their persons, houses, 
papers, and effects, against unreasonable searches and seizures, shall 
not be violated ; and no warrants shall issue, but upon probable 
cause, supported by oath or affirmation, and particularly describing 
the place to be searched, and the persons or things to be seized. 



Selected Cases in Constitutional Law. 17 

ARTICLE V. 

No person shall be held to answer for a capital, or otherwise in- 
famous crime, unless on a presentment or indictment of a grand 
jury, except in cases arising in the land or naval forces, or in the 
militia, when in actual service, in time of war or public danger ; nor 
shall any person be subject, for the same offense, to be twice put in 
jeopardy of life or limb; nor shall be compelled, in any criminal 
case, to be a witness against himself, nor be deprived of life, lib- 
erty, or property, without due process of law ; nor shall private 
property be taken for public use without just compensation. 



ARTICLE VI. 

In all criminal prosecutions, the accused shall enjoy the right to a 
speedy and public trial, by an impartial jury of the state and dis- 
trict wherein the crime shall have been committed, which district 
shall have been previously ascertained by law, and to be informed 
of the nature and cause of the accusation ; to be confronted with the 
witnesses against him ; to have compulsory process for obtaining 
witnesses in his favor ; and to have the assistance of counsel for his 
defence. 

ARTICLE VII. 

In suits at common law, where the value in controversy shall 
exceed twenty dollars, the right of trial by jury shall be preserved ; 
and no fact, tried by a jury, shall be otherwise re-examined in any 
court of the United States, than according to the rules of the 
common law. 

ARTICLE VIII. 

Excessive bail shall not be required, nor excessive fines imposed, 
nor cruel and unusual punishments inflicted. 

ARTICLE IX. 

The enumeration in the constitution, of ertain rights shall not 
be construed to deny or disparage others rete* >ed by the people. 

ARTICLE X. 

The powers not delegated to the United States by the constitu- 
tion, nor prohibited by it to the states, are reserved to the states 
respectively, or to the people. 

ARTICLE XL 

The judicial power of the United States shall not be construed 
to extend to any suit in law or equity, commenced or prosecuted 
against one of the United States by citizens of another state, or by 
citizens or subjects of any foreign state. 



18 Selected Cases in Constitutional Law. 

ARTICLE Xil.' 

Section i. The electors shall meet in their respective states and 
vote by ballot for president and vice-president, one of whom, at 
least, shall be an inhabitant of the same state with themselves ; 
they shall name in their ballots the person voted for as president, 
and in distinct ballots the person voted for as vice-president ; and 
they shall make distinct lists of all persons voted for as president, 
and of all persons voted for as vice-president, and of the number of 
votes for each, which lists they shall sign and certify, and transmit 
sealed to the seat of the government of the United States, directed to 
the president of the senate : — the president of the senate shall, in the 
presence of the senate and house of representatives, open all the cer- 
tificates, and the votes shall then be ■ counted ;— the person having 
the greatest number of votes for president, shall be the president, 
if such number be a majority of the whole number of electors 
appointed ; and if no person have such majority, then from the per- 
sons having the highest numbers, not exceeding three, on the list of 
those voted for as president, the house of representatives shall 
choose immediately, by ballot, the president. But in choosing the 
president, the votes shall be taken by states, the representation 
from each state having one vote ; a quorum for this purpose shall 
consist of a member or members from two-thirds of the states, and a 
majority of all the states shall be necessary to a choice. And if the 
house of representatives shall not choose a president, whenever 
the right of choice shall devolve upon them, before the fourth day 
of March next following, then the vice-president shall act as presi- 
dent, as in the case of the death or other constitutional disability of 
the president. The person having the greatest number of votes as 
vice-president, shall be the vice-president, if such number be a 
majority of the whole number of electors appointed; and if no 
person have a majority, then from the two highest numbers on the 
list, the senate shall choose the vice-president ; a quorum for the 
purpose shall cci sist of two-thirds of the whole number of senators, 
and a majority of the whole number shall be necessary to a choice. 
But no person constitutionally ineligible to the office of president, 
shall be eligible to that of vice-president of the United States. 



ARTICLE XIII. 

Section i. Neither slavery nor involuntary servitude, except as 
a punishment for crime, whereof the party shall have been duly 
convicted, shall exist within the United States, or any place subject 
to their jurisdiction. 

Sec. 2. Congress shall have power to enforce this article by 
appropriate legislation. 



Selected Cases in Constitutional Law. 19 

ARTICLE XIV. 

Section i. All persons born or naturalized in the United States, 
and subject to the jurisdiction thereof, are citizens of the United 
States, and of the state wherein they reside. No state shall make 
or enforce any law which shall abridge the privileges or immuni- 
ties of citizens of the United States; nor shall any state deprive any 
person of life, liberty, or property, without due process of law ; nor 
deny to any person within its jurisdiction the equal protection of 
the laws. 

Sec. 2. Representatives shall be apportioned among the several 
states according to their respective numbers, counting the whole 
number of persons in each state, excluding Indians not taxed. But 
when the right to vote at any elction for the choice of electors for 
president and vice-president of the United States, representatives 
in congress, the executive and judicial officers of a state, or the 
members of the legislature thereof, is denied to any of the male 
inhabitants of such state, being twenty-one years of age, and citi- 
zens of the United States, or in any way abridged, except for par- 
ticipation in rebellion or other crime, the basis of representation 
therein shall be reduced in the proportion which the number of 
such male citizens shall bear too the whole number of male citizens 
twenty-one yei -3 of age in such state. 

Sec. 3. No person shall be a senator or representative in con- 
gress, or elector of president and vice-president, or hold any office, 
civil or military, under the United States, or under any state, who 
having previously taken an oath, as a member of congress, or as an 
officer of the United States, or as a member of any state legislature, 
or as executive or judicial officer of any state, to support the con- 
stitution of the United States, shall have engaged in insurrection 
or rebellion against the same, or given aid or comfort to the enemies 
thereof. But congress may, by a vote of two-thirds of each house, 
remove such disability. 

Sec. 4. The validity of the public debt of the United States, 
authorized by law, including debts incurred for payment of pensions 
and bounties for services in suppressing insurrection or rebellion, 
shall not be questioned. But neither the United States nor any 
state shall assume or pay any debt or obligation incurred in aid of 
insurrection or rebellion against the United States, or any claim for 
loss or emancipation of any slave ; but all such debts, obligations, 
and claims shall be held illegal and void. 

Sec. 5. The congress shall have power to enforce, by appropriate 
legislation, the provisions of this article. 



ARTICLE XV. 

Section i. The right of citizens of the United States to vote 
shall not be denied or abridged by the United States or by any state 
oon account of race, color, or previous condition of servitude. 

Sec. 2. The congress shall have power to enforce this article by 
appropriate legislation. 



20 Selected Cases in Constitutional Law. 



CHAPTER I. 
THE EXECUTIVE DEPARTMENT. 

SECTION I. 
The Manner of Choosing the President. 

Mcpherson v. blacker. 

146 U. S., 1. 1892. 

A statute of the State of Michigan passed May 1st, 1891, pro- 
vided for the appointment of electors for President and Vice-Pres- 
ident of the United States by the election of an elector and an al- 
ternate elector in each of the twelve congressional districts into 
which the State of Michigan was divided, and of an elector and an 
alternate elector at large in each of two districts of the State, 
known as an eastern and a western district. The constitutionality of 
the act was questioned on the ground that it was not competent for 
the legislature to direct this manner of appointment because the 
State under the constitution should appoint its electors as a unit, 
and could not delegate its authority to subdivisions created for that 
purpose. It was argued that the appointment of electors by dis- 
tricts was not an appointment by the state, because all its citizens 
otherwise qualified were not permitted to vote for all the presi- 
dential electors. 

The Supreme Court of Michigan held that the law was valid and 
constitutional, whereupon an appeal was taken to the Supreme 
Court of the United States. 

Mr. Chief Justice Fuller delivered the opinion of the court. 
The State does not act by its people in their collective capacity, 
but through political agencies as are duly constituted and establish- 
ed. The legislative power is the supreme authority except as limit- 
ed by the constitution of the state, and the sovereignty of the peo- 
ple is exercised through their representatives in the legislature, un- 
less by the fundamental law power is elsewhere reposed.* * * 
* If the legislature possesses plenary authority to direct the man- 
ner of appointment, and might itself authorize the appointing 
power by joint ballot or concurrence of the two houses, or ac- 
cording to such mode as designated, it is difficult to perceive why, 
if the legislature prescribes as a method of appointment choice by 
vote, it must necessarily be by general ticket and not by districts. 
In other words, the act of appointment is none the less the act of 
the state in its entirety because arrived at by districts, for the act 
is the act of political agencies duly authorized to speak for the 
state, and the combined result is the expression of the voice of 
the state, a result reached by direction of the legislature to whom 
the whole subject is committed. (The Court then discusses the 



Selected Cases in Constitutional Law. 21 

methods of the choice of electors adopted by the legislatures of 
the several states in the presidential elections, showing that in the 
early elections, the electors were generally appointed outright by 
the state legislatures and concludes, as follows: "In 1824 the 
electors were chosen by popular vote, by districts and by general 
ticket in all the states excepting Delaware, Georgia, Louisiana, 
New York, South Carolina and Vermont, where they were still 
chosen by the legislature. After 1832 electors were chosen by 
general ticket in all the states excepting South Carolina, where 
the legislature chose them up to and including i860"). * * * * 
From this review, in which we have been assisted by the laborious 
research of counsel, and which might have been greatly expand- 
ed, it is seen that from the formation of the government until now 
the practical construction of the clause has conceded plenary power 
to the state legislature in the manner of appointment of electors. 
* * * * In short, the appointment and mode of appointment 
of electors belong exclusively to the states under the constitution 
of the United States. They are, as remarked Mr. Justice Gray in 
re Green, 134 U. S. 377, "no more officers or agents of the United 
States than are the members of the state legislature when acting 
as electors of Federal senators, or the people of the states when 
acting as the electors of representatives in Congress." Congress is 
empowered to determine the time of choosing the electors, and 
the day on which they are to give their votes, which is required 
to be the same day throughout the United States, but otherwise 
the power and jurisdiction of the state is exclusive, with the ex- 
ception of the provisions as to the number of electors and the in- 
eligibility of certain persons, so framed that congressional and 
Federal influence might be excluded. We repeat that the main 
question arising for consideration is one of power and not of 
policy, and we are unable to arrive at any other conclusion than 
that the act of the legislature of Michigan of May 1, 1891, is not 
void as in contravention of the Constitution of the United States 
for want of power in its enactment. The judgment of the Supreme 
Court of Michigan must be affirmed. 



SECTION II. 

The President's Power of Appointment. 

MARBURY v. MADISON. 

1 Cranch, 137. 1803. 

This was an original proceeding brought in the Supreme Court 
of the United States for a mandamus commanding James Madi- 
son, Secretary of State under President Jefferson, to deliver a 
commission to William Marbury, the .'plaintiff, as a justice of the 
peace for the District of Columbia. The plaintiff claimed to 
have been appointed by President Jefferson's predecessor, 



22 Selected Cases in Constitutional Law. 

President John Adams. The particular act of Congress 
upon which the plaintiff relied in bringing this action 
was the Judiciary Act of 1789, which authorized the Supreme 
Court of the United States to issue writs of mandamus to persons 
holding office under the authority of the United States. 

Mr. Chief Justice Marshall delivered the opinion of the court. 

''In the order in which the court has viewed this subject, the 
following questions have been considerd and decided. 1st. Has 
the applicant a. right to the commission he demands? 2d. If he 
has a right, and that right has been violated, do the laws of his 
country afford him a remedy? 3d. If they do afford him a remedy, 
is it a mandamus issuing from this court? 

The first object of inquiry is, 

1st, Has the applicant a right to the commission he demands? 

His right originates in an Act of Congress passed in February, 
1801, concerning the District of Columbia. 

After dividing the district into two counties, the nth section 
of this law, enacts, "that there shall be appointed in and for each 
of the said counties, such number of discreet persons to be justices 
of the peace as the President of the United States shall, from time 
to time, think expedient, to continue in office for five years. 

It appears from the affidavits, that in compliance with this law, 
a commission for William Marbury as a justice of the peace for 
the county of Washington, was signed by John Adams, then Pres- 
ident of the United States ; after which the seal of the United 
States was affixed to it ; but the commission has never reached 
the person for whom it was made out. 

In order to deteimine whether he is entitled to this commission, 
it becomes ' necessary to enquire whether he has been appointed to 
the office. For if he has been appointed, the law continues him in 
office for five years, and he is entitled to the possession of those 
evidences of office, which being completed, became his property. 

The second section of the second article of the Constitution de- 
clares, that, "the president shall nominate, and, by and with the 
advice and consent of the Senate, shall appoint ambassadors, other 
public ministers and consuls, and all other officers of the United 
States, whose appointments are not otherwise provided for." The 
Third section declares, that "he shall commission all the officers 
of the United States." 

An Act of Congress directs the Secretary of State to keep the 
seal of the United States, "to make out and record, and affix the 
said seal to all civil commissions to officers of the United States, 
to be appointed by the President by and with the consent of the 
Senate, or by the President alone ; provided that the said seal 
shall not be affixed to any commission before the same shall have 
been signed by the President of the United States." 

These are the clauses of the constitution and laws of the United 
States, which affect this part of the case. They seem to contem- 
plate three distinct operations: 1st, the nomination. This is the 
sole act of the President, and is completely voluntary. 2d, the 
appointment. This is also the act of the President, and is also a 



Selected Cases in Constitutional Law. 23 

voluntary act, though it can only be performed by and with the 
advice and consent of the Senate. 3d, the commission. To grant 
a commission to a person appointed, might perhaps be deemed a 
duty enjoined by the Constitution. "He shall," says that instru- 
ment, "commission all officers of the United States." 

This is an appointment made by the President, by and with the 
advice and consent of the Senate, and is evidenced by no act but 
the commission itself. In such a case, therefore, the commission 
and the appointment seem inseparable ; it being almost impossible 
to show an appointment otherwise than by proving the existence 
of a commission ; still the commission is not necessarily the ap- 
pointment, though conclusive evidence of it. 

The last act to be done by the President, is the signature of the 
commission. He has then acted on the advice and consent of the 
Senate to his own nomination. The time for deliberation has 
passed. He has decided. His judgment, on the advice and consent 
of the Senate concurring with his nomination, has been made, and 
the officer is appointed. This appointment is evidenced by an open, 
unequivocal act ; and being the last act required from the person 
making it, necesarily excludes the idea of its being, so far as re- 
spects the appointment, an inchoate and incomplete transaction. 

Some point of time must be taken when the power of the ex- 
ecutive over an officer, not removable at his will, must cease. That 
point of time must be when the constitutional power of appoint- 
ment has been exercised. And this power has been exercised when 
the last act, required from the person possessing the power, has 
been performed. This last act is the signature of the commission. 

The signature is a warrant for affixing the great seal to the com- 
mission ; and the great seal is only to be affixed to an instrument 
which is complete. It attests, by an act supposed to be of public 
notoriety, the verity of the Presidential signature. 

The commission being signed, the subsequent duty of the Sec- 
retary of State is prescribed by law, and is not to be guided by 
the will of the President. He is to affix the seal of the United States 
to the commission and is to record it. 

This is not a proceeding which may be varied, if the judgment 
of the executive shall suggest one more eligible ; but is a precise 
course accurately marked out by law, and is to be strictly pursued. 
It is the duty of the Secretary of State to conform to the law, and 
in this he is an officer of the United States, bound to obey the 
laws. He acts in this respect, under the authority of the law and 
not by the instructions of the President. It is a ministerial act 
which the law enjoins on a particular officer for a particular pur- 
pose. 

It is not necessary that livery should be made personally to 
the grantee of the office. It never is so made. The law would 
seem to contemplate that it should be made to the Secretary of 
State, since it directs the Secretary to affix the seal to the com- 
mission after it shall have been signed by the President. If then 
the act of livery be necessary to give validity to the commission, 
it has been delivered when executed and given to the Secretary 



24 Selected Cases in Constitutional Law. 

for the purpose of being sealed, recorded and transmitted to the 
party. 

To withhold his (Marbury's) commission, therefore, is an act 
deemed (by the court not warranted by law, but violative of a 
vested legal right. 

This brings us to the second enquiry, which is, 

2. If he has a right and that right has been violated, do the 
laws of his country afford him a remedy. 

Where a specific duty is assigned by law, and individual rights 
depend upon the performance of that duty, it seems clear that the 
individual who considers himself injured, has a right to resort to 
the laws of his country for a remedy. 

It remains to be inquired whether, thirdly. He is entitled to the 
remedy for which he applies. This depends on, first, the nature 
of the writ applied for, and secondly, the power of this court. 

Blackstone, in the third volume of his commentaries, page no, 
defines a mandamus to be, "a command issuing in the king's name 
from a court of king's bench, and directed to any person, corpora- 
tion, or inferior court of judicature within the king's dominions, 
requiring them to do some particular thing therein specified, which 
appertains to their office and duty, and which the court of king's 
bench has previously determined, or at least supposes, to be con- 
sonant to right and justice." (The court reaches the conclusion 
that) This, then, is a plain case for a mandamus, either to deliver 
the commission, or a copy of it from the record ; and it only 
remains to be inquired, whether it can issue from this court. 

"The act to establish the judicial courts of the United States au- 
thorizes the Supreme Court 'to issue writs of mandamus, in cases 
warranted by the principles and usages of law, to any courts 
appointed, or persons holding office, under the authority of the 
United States.' 

"The Secretary of State, being a person holding an office under 
the authority of the United States, is precisely within the letter 
of the description ; and if this court is not authorized to issue a 
writ of mandamus to such an officer, it must be because the law 
is unconstitutional, and therefore absolutely incapable of conferring 
the authority, and assigning the duties which its words purport 
to confer and assign. 

"The Constitution vests the whole judicial power of the United 
States in one Supreme Court, and such inferior courts as Congress 
shall, from time to time, ordain and establish. This power is ex- 
pressly extended to all cases arising under the laws of the United 
States ; and consequently in some form may be exercised over the 
present case, because the rigjht claimed is given by a law of the 
United States. 

"In the distribution of this power it is declared that 'the Su- 
preme Court shall have original jurisdiction in all cases affecting 
ambassadors, other public ministers and consuls, and those in which 
a state shall be a party. In all other cases the Supreme Court shall 
have appellate jurisdiction.' 

"It has been insisted, at the bar, that as the original grant of 



Selected Cases in Constitutional Law. 25 

jurisdiction, to the supreme and inferior courts, is general and the 
clause, assigning original jurisdiction to the Supreme Court, con- 
tains no negative or restrictive words, the power remains to the 
legislature to assign original jurisdiction to that court in other cases 
than those specified in the article which has been recited ; provided 
those cases belong to the judicial power of the United States. 

"If it had been intended to leave it in the discretion of the legis- 
lature to apportion the judicial power between the supreme and in- 
ferior courts according to the will of that body, it would certainly 
have been useless to have proceeded further than to have defined 
the judicial power, and the tribunals in which it should be vested. 
The subsequent part of the section is mere surplusage, is entirely 
without meaning, if such is to be the construction. If Congress 
remains at liberty to give this court appellate jurisdiction, where the 
Constitution has declared their jurisdiction shall be original ; and 
original jurisdiction where the Constitution has declared it shall 
be appellate ; the distribution of jurisdiction, made in the Constitu- 
tion, is form without substance. 

"Affirmative words are often, in their operation, negative of 
other objects than those affirmed : and in this case, a negative or 
exclusive sense must be given to them, or they have no operation at 
all. 

"It cannot be presumed that any clause in the Constitution is in- 
tended to be without effect ; and, therefore, such a construction is 
inadmissible, unless the words require it. 

"When an instrument organizing fundamentally a judicial sys- 
tem, divides it into one supreme, and so many inferior courts as 
the legislature may ordain and establish ; then enumerates its pow- 
ers, and proceeds so far to distribute them, as to define the juris- 
diction of the Supreme Court by declaring the cases in which it 
shall take original jurisdiction, and that in others it shall take ap- 
pellate jurisdiction ; the plain import of the words seems to be, 
that in one class of cases its jurisdiction is original and not- appel- 
late ; in the other it is appellate, and not original. If any other con- 
struction would render the clause inoperative, that is an additional 
reason for rejecting such other construction, and for adhering to 
their obvious meaning. 

"To enable this court, then, to issue a mandamus, it must be 
shown to be an exercise of appellate jurisdiction, or to be necessary 
to enable them to exercise appellate jurisdiction. 

"It has been stated at the bar that the appellate jurisdiction may 
be exercised in a variety of forms, and that if it be the will of the 
legislature that a mandamus should be used for that purpose, that 
will must be obeyed. This is true, yet the jurisdiction must be 
appellate, not original. 

"It is the essential criterion of appellate jurisdiction, that it re- 
vises and corrects the proceedings in a cause already instituted, and 
does not create that cause. Although, therefore, a mandamus may 
be directed to courts, yet to issue such a writ to an officer for the 
delivery of a paper, is in effect the same as to sustain an original 
action for that paper, and, therefore, seems not to belong to appel- 



26 Selected Cases in Constitutional Law. 

late, but to original jurisdiction. Neither is it necessary, in such 
a case as this, to enable the court to exercise its appellate jurisdic- 
tion." 

The authority, therefore, given to the Supreme Court, by the act 
establishing the judicial courts of the United States, to issue writs 
of mandamus to public officers, appears not to be warranted by the 
Constitution; and it becomes necessary to inquire whether a juris- 
diction so conferred can be exercised. 

The question whether an act repugnant to the Constitution can 
become the law of the land, is a question deeply interesting to the 
United States ; but, happily, not of an intricacy proportioned to its 
interest. It seems only necessary to recognize certain principles, 
supposed to have been long and well established, to decide it. 

That the people have an original right to establish, for their future 
government, such principles as, in their opinion, shall most conduce 
to their own happiness, is the basis on which the whole American 
fabric has been erected. The exercise of this original right is a very 
great exertion ; nor can it nor ought it to be frequently repeated. 
The principles, therefore, so established, are deemed fundamental. 
And as the authority from which they proceed is supreme, and can 
seldom act, they are designed to be permanent. 

This original and supreme will organizes the government, and as- 
signs to different departments their respective powers. It may 
either stop here, or establish certain limits not to be transcended 
by those departments. , 

The government of the United States is of the latter description. 
The powers of the legislature are defined and limited ; and that those 
limits may not be mistaken, or forgotten, the Constitution is written. 
To what purpose are powers limited, and to what purpose is that 
limitation committed to writing, if these limits may, at any time, be 
passed by those intended to be restrained? The distinction between 
a government with limited and unlimited powers is abolished, if those 
limits do not confine the persons on whom they are imposed, and if 
acts prohibited and acts allowed are of equal obligation. It is a 
proposition too plain to be contested, that the Constitution controls 
any legislative act repugnant to it ; or, that the legislature may alter 
the Constitution by an ordinary act. 

Between these alternatives there is no middle ground. The Con- 
stitution is either a superior paramount law, unchangeable by ordi- 
nary means, or it is on a level with ordinary legislative acts, and, like 
other acts, is alterable when the legislature shall please to alter it. 

If the former part of the alternative be true, then a legislative act 
contrary to the Constitution is not law ; if the latter part be true, 
then written constitutions are absurd attempts, on the part of the 
people, to limit a power in its own nature illimitable. 

Certainly all those who have framed written constitutions contem- 
plate them as forming the fundamental and paramount law of the 
nation, and, consequently, the theory of every such government must 
be, that an act of the legislature, repugnant to the Constitution, 
is void. 

This theory is essentially attached to a written constitution, and 



Selected Cases in Constitutional Law. 27 

is consequently to be considered, by this court, as one of the funda- 
mental principles of our society. It is not, therefore, to be lost sight 
of in the further consideration of this subject. 

If an act of the legislature, repugnant to the Constitution, is void, 
does it, notwithstanding its invalidity, bind the courts, and oblige 
them to give it effect? Or, in other words, though it be not law, does 
it constitute a rule as operative as if it was a law? This would be 
to overthrow in fact what was established in theory ; and would 
seem, at first view, an absurdity too gross to be insisted on. It 
shall, however, receive a more attentive consideration. 

It is emphatically the province and duty of the judicial department 
to say what the law is. Those who apply the rule to particular cases 
must of necessity expound and interpret that rule. If two laws con- 
flict with each other, the courts must decide on the operation of each. 

So if a law be in opposition to the Constitution ; if both the law 
and the Constitution apply to a particular case, so that the court must 
either decide that case conformably to the law, disregarding the Con- 
stitution, or conformably to the Constitution, disregarding the law, 
the court must determine which of these conflicting rules governs 
the case. This is of the very essence of judicial duty. 

If, then, the courts are to regard the Constitution, and the Consti- 
tution is superior to any ordinary act of the legislature, the Con- 
stitution, and not such ordinary act, must govern the case to which 
they both apply. 

Those, then, who controvert the principle that the Constitution is 
to be considered, in court, as a paramount law, are reduced to the 
necessity of maintaining that courts must close their eyes on the 
Constitution, and see only the law. 

This doctrine would subvert the very foundation of all written 
constitutions. It would declare that an act which, according to the 
principles and theory of our government, is entirely void, is yet, in 
practice, completely obligatory. It would declare that if the legis- 
lature shall do what is expressly forbidden, such act, notwithstanding 
the express prohibition, is in reality effectual. It would be giving 
to the legislature a practical and real omnipotence, with the same 
breath which professes to restrict their powers within narrow 
limits. It is prescribing limits, and declaring- that those limits may 
be passed at pleasure. 

The particular phraseology of the Constitution of the United 
States confirms and strengthens the principle, supposed to be essen- 
tial to all written constitutions, that a law repugnant to the Consti- 
tution is void ; and that courts, as well as other departments, are 
bound by that instrument. 

The rule (for a mandamus) must 'be discharged. 



UNITED STATES v. GERMAINE, 
99 U. S., 508. 1878. 

The defendant, Charles N. Germaine, was appointed by the Com- 
missioner of Pensions to act as surgeon. He was to make an ex- 



28 Selected Cases in Constitutional Law. 

amination of applicants for pensions and was permitted to charge a 
fee of $2 for each examination. He was indicted in the District 
of Maine for extortion in taking fees from pensioners to which 
he was not entitled. The law under which he was indicted is thus 
set forth in section 12 of the Act of 1825: 

"Every officer of the United States who is guilty of extortion 
under color of his office shall be punished by a fine of not more 
than $500, or by imprisonment not more than one year, according 
to the aggravation of his offense." The defendant sought to es- 
cape punishment under the statute on the ground that he was not 
an officer of the United States within the meaning of this act, 
though he might be an agent or employee of the government. 

The Judges of the Circuit Court for the District of Maine were 
divided in their opinion, so the case was certified to the United 
States Supreme Court. 

Mr. Justice Miller delivered the opinion of the court. 

"The argument is that provision is here made for the appointment 
of all officers of the United States, and that defendant, not being ap- 
pointed in either of the modes here mentioned, is not an officer, 
though he may be an agent or employee working for the govern- 
ment and paid by it, as nine-tenths of the persons rendering service 
to the government undoubtedly are, without thereby becoming its 
officers. 

The Constitution for purposes of appointment very clearly divides 
all its officers into two classes. The primary class requires a nomi- 
nation by the President and confirmation by the Senate. But fore- 
seeing that when offices became numerous, and sudden removals 
necessary, this mode might be inconvenient, it was provided that, in 
regard to offices inferior to those specially mentioned, Congress 
might by law vest their appointment in the President alone, in the 
courts of law, or in the heads of departments. That all persons 
who can be said to hold an office under the government about to be 
established under the Constitution were intended to be included 
within one or the other of these modes of appointment there can 
be but little doubt. This Constitution is the supreme law of the 
land, and no act of Congress is of any validity which does not rest 
on authority conferred by that instrument. It is, therefore, not to 
be supposed that Congress, when enacting a criminal law for the 
punishment of officers of the United States, intended to punish any 
one not appointed in one of those modes. If the punishment were 
designed for other than officers as defined by the Constitution, words 
to that effect would be used, as servant, agent, person in the service 
or employment of the government ; and this has been done where 
it was so intended, as in the sixteenth section of the act of 1846, 
concerning embezzlement, by which any officer or agent of the 
United States and all persons participating in the act, are made 
liable. 

As the defendant here was not appointed by the President or by a 
court of law, it remains to inquire if the Commissioner of Pensions, 
by whom he was appointed, is the head of a department, within the 



Selected Cases in Constitutional Law. 29 

meaning of the Constitution, as is argued by the counsel for plain- 
tiffs. 

That instrument was intended to inaugurate a new system of gov- 
ernment, and the departments to which it referred were not then in 
existence. The clause we have cited is to be found in the article 
relating to the executive, and the word as there used has reference 
to the subdivision of the power of the executive into departments, 
for the more convenient exercise of that power. One of the defini- 
tions of the word given by Worcester is, "a part or division of the 
executive government, as the Department of State, or of the Treas- 
ury." Congress recognized this in the act creating these subdivisions 
of the executive branch by giving to each of them the name of a de- 
partment. Here we have the Secretary of State, who is by law the 
head of the Department of State, the Departments of War, Interior, 
Treasury, &c. And by one of the latest of these statutes reorganiz- 
ing the Attorney-General's office and placing it on the basis of the 
others, it is called the Department of Justice. The association of the 
words "heads of departments" with the President and the courts of 
law strongly implies that something different is meant from the in- 
ferior commissioners and bureau officers, who are themselves the 
mere aids and subordinates of the heads of the departments. Such, 
also, has been the practice, for it is very well understood that the 
appointments of the thousands of clerks in the Departments of 
the Treasury, Interior, and the others, are made by the heads of 
those departments, and not by the heads of the bureaus in those 
departments. 

So in this same section of the Constitution it is said that the 
President may require the opinion in writing of the principal officer 
in each of the executive departments relating to the duties of their 
respective offices. 

The word "department," in both these instances, clearly means 
the same thing, and the principal officer in the one case is the 
equivalent of the head of department in the other. 

While it has been the custom of the President to require these 
opinions from the Secretaries of State, the Treasury, of War, Navy, 
&c, and his consultation with them as members of his cabinet has 
been habitual, we are not aware of any instance in which such 
written opinion has been officially required of the head of any of the 
bureaus, or of any commissioner or auditor in these departments. 

If we look to the nature of defendant's employment, we think it 
equally clear that he is not an officer. (In U. S. v. Hartwell the 
court said), the term embraces the ideas of tenure, duration, emolu- 
ment, and duties, and that the latter were continuing and perma- 
nent, not occasicr-al or temporary. In the case before us, the duties 
are not continuing and permanent, and they are occasional and in- 
termittent. The surgeon is only to act when called on by the Com- 
missioner of Pensions in some special case, as when some pensioner 
or claimant of a pension presents himself for examination. He may 
make fifty of these examinations in a year, or none. He is required 
to keep no place of business for the public use. He gives no bond 



30 Selected Cases in Constitutional Law. 



and takes no oath, unless by some order of the Commissioner of 
Pensions of which we are not advised. 

No regular appropriation is made to pay his compensation, which 
is two dollars for every certificate of examination, but it is paid out 
of money appropriated for paying pensions in his district, under reg- 
ulations to be prescribed by the commissioner. He is but an agent 
of the commissioner, appointed by him, and removable by him at his 
pleasure, to procure information needed to aid in the performance of 
his own official duties. He may appoint one or a dozen persons to 
do the same thing. The compensation may amount to five dollars or 
five hundred dollars per annum. There is no penalty for his absence 
from duty or refusal to perform, except his loss of the fee in the 
given case. If Congress had passed a law requiring the commission- 
er to appoint a man to furnish each agency with fuel at a price per 
ton fixed by law high enough to secure the delivery of the coal, he 
would have as much claim to be an officer of the United States as 
the surgeons appointed under this statute. 

We answer that the defendant is not an officer of the United 
States, and that judgment on the demurrer must be entered in his 
favor. 

BLAKE v. UNITED STATES. 

103 U. S., 227. 1880. 

Blake was a post chaplain in the United States Army and dur- 
ing a period of temporary insanity wrote a letter to the Secretary 
of War which was construed by the latter to be a resignation and 
was accepted as such. One Gilmore was thereupon nominated by 
the President for the office and the nomination was confirmed by 
the Senate. Some years later Blake became sane again, and the 
circumstances under which he had written the letter to the Sec- 
retary of War being made known to the President, he was re-ap- 
pointed to an office similar to that which he had formerly held. 
Blake brought suit in the Court of Claims for salary which he claim- 
ed was due him for the period intervening between the date his 
resignation was accepted and the date of his re-appointment. His 
claim was dismissed, whereupon he appeal to the United States 
Supreme Court. 

Mr. Justice Harlan delivered the opinion of the court. 

The claim is placed upon the ground that before, at the date of, 
and subsequent to, the letter addressed to the Secretary of War, 
which was treated as his resignation, he was insane in a sense that 
rendered him irresponsible for his acts, and consequently that his 
supposed resignation was inoperative and did not have the effect 
to vacate his office. Did the appointment of Gilmore, by and with 
the advice and consent of the Senate, to the post-chaplaincy held 
by Blake, operate, proprio vigor e, to discharge the latter from the 
service, and invest the former with the rights and privileges belong- 
ing to that office? If this question be answered in the affirmative, 
it will not be necessary to inquire whether Blake was, at the date 



Selected Cases in Constitutional Law. 31 

of the letter of December 24, 1868, in such condition of mind as 
to enable him to perform, in a legal sense, the act of resiging his 
office ; or, whether the acceptance of his resignation, followed by 
the appointment of his successor, by the President, by and with 
the advice and consent of the Senate, is not, in view of the relations 
of the several departments of the government to each other, con- 
clusive, in this collateral proceeding, as to the fact of a valid ef- 
fectual resignation. 

From the organization of the government under the present Con- 
stitution, to the commencement of the recent war for the suppression 
of the rebellion, the power of the President, in the absence of statu- 
tory regulations, to dismiss from the service an officer of the army 
or navy, was not questioned in any adjudged case, or by any depart- 
ment of the government. 

Upon the general question of the right to remove from office, as 
incident to the power to appoint, Ex parte Hennen (13 Pet. 259) is 
instructive. That case involved the authority of a district judge of 
the United States to remove a clerk and appoint some one in his 
place. 

The court, among other things, said : "All offices, the tenure of 
which is not fixed by the Constitution or limited by law must be held 
either during good behavior, or (which is the same thing in contem- 
plation of law) during the life of the incumbent, or must be held at 
the will and discretion of some department of the government, and 
subject to removal at pleasure. 

"It cannot for a moment be admitted that it was the intention of 
the Constitution that those offices which are denominated inferior 
offices should be held during life. And if removable at pleasure, by 
whom is such removal to be made? In the absence of all constitu- 
tional provision or statutory regulation, it would seem to be a sound 
and necessary rule to consider the power of removal as incident to 
the power of appointment. This power of removal from office was 
a subject much disputed, and upon which a great diversity of opin- 
ion was entertained in the early history of this government. This 
related, however, to the power of the President to remove officers 
appointed with the concurrence of the Senate; and the great ques- 
tion was whether the removal was to be by the President alone, or 
with the concurrence of the Senate, both constituting the appointing 
power. No one denied the power of the President and Senate joint- 
ly to remove, vhere the tenure of the office was not fixed by the Con- 
stitution ; which was a full recognition of the principle that the power 
of removal was incident to the power of appointment. But Jt was 
very early adopted, as the practical construction of the Constitution 
that this power was vested in the President alone. And such would 
appear to have been the legislative construction of the Constitution." 



In Du Barry's Case, Attorney-General Clifford said that the at- 
tempt to limit the exercise of the power of removal to the executive 
officers in the civil service found no support in the language of 
the Constitution nor in any judicial decision ; and that there was no 



32 Selected Cases in Constitutional Law. 

foundation in the Constitution for any distinction in this regard 
between civil and military officers. 

In Lansing's Case, the question arose as to the power of the 
President, in his discretion, to remove a military storekeeper. At- 
torney-General Cushing said : "Conceding, however, that military 
storekeepers are officers, or, at least, quasi officers, of the army, it 
does not follow that they are not subject to be deprived of their 
commission at the will of the President. 

"I am not aware of any ground of distinction in this respect, so 
far as regards the strict question of law, between officers of the 
army and any other officers of the government. As a general rule, 
with the exception of judicial officers only, they all hold their com- 
missions by the same tenure in this respect. Reasons of a special 
nature may be deemed to exist why the rule should not be applied to 
military in the same way as it is to civil officers, but the legal appli- 
cability to both classes of officers is, it is conceived, the settled con- 
struction of the Constitution. It is no answer to this doctrine to say 
that officers of the army are subject to be deprived of their commis- 
sions by the decision of a court-martial. So are civil officers by 
impeachment. The difference between the two cases is in the form 
and mode of trial, not in the principle, which leaves unimpaired in 
both cases alike the whole constitutional power of the President." 

^ >j; ^ ^c 

Such was the established practice in the Executive Department, 
and such the recognized power of the President up to the passage of 
the act of July 17, 1862, entitled "An Act to define the pay and 
emoluments of certain officers of the army, and' for other pur- 
poses," the seventeenth section of which provides that "the Presi- 
dent of the United States be, and hereby is, authorized and request- 
ed to dismiss and discharge from' the military service, either in the 
army, navy, marine corps, or volunteer force, any officer for any 
cause which, in his judgment, either renders such officer unsuit- 
able for, or whose dismission would promote, the public service." 

sfc * * * 

(The Act of July 17, 1866, provides) "no officer in the military 
or naval service shall, in time of peace, be dismissed from the 
service, except upon and in pursuance of the sentence of a court- 
martial to that effect, or in commutation thereof." *■ * * * 

Our conclusion is that there was no purpose, by the act of July 
13, 1866, to withdraw from the President the power, with the ad- 
vice and consent of the Senate, to supersede an officer in the mili j 
tary or naval service by the appointment of some one in his place. 
If the power of the President and Senate, in this regard, could 
be constitutionally subjected to restrictions by statute (as to which 
we express no opinion), it is sufficient for the present case to say 
that Congress did not intend by that section to impose them. It 
is, in substance and effect, nothing more than a declaration, that the 
power theretofore exercised by the President, without the concur- 
rence of the Senate, of summarily dismissing or discharging officers 
of the army or the navy, whenever in his judgment the interest of 



Selected Cases in Constitutional Law. 33 

the service required it to be done, shall not exist, or be exercised, in 
time of peace, except in pursuance of the sentence of a court-martial, 
or in commutation thereof. There was, as we think, no intention to 
deny or restrict the power of the President, by and with the advice 
and, consent of the Senate, to displace them by the appointment of 
others in their places. 

It results that the appointment of Gilmore, with the advice and 
consent of the Senate, to the office held by Blake, operated in law to 
supersede the latter, who thereby, in virtue of the new appointment, 
ceased to be an officer in the army from and after, at least, the date 
at which that appointment took effect, — and this, without reference 
to Blake's mental capacity to understand what was a resignation. 
He was, consequently, not entitled to pay as post-chaplain after July 
2, 1870, from which date his successor took rank. Having ceased to 
be an officer in the army, he could not again become a post-chaplain, 
except upon a new appointment, by and with the advice and consent 
of the Senate. Mimmack v. United States, 97 U. S. 426, 437. 

As to that portion of the claim covering the period between April 
28, 1869, and July 2, 1870, it is only necessary to say, that, even 
were it conceded that the appellant did not cease to be an officer in 
the army by reason of the acceptance of his resignation, tendered 
when he was mentally incapable of understanding the nature and 
effect of such an act, he cannot recover in this action. His claim for 
salary during the above period accrued more than six years, and the 
disability of insanity ceased more than three years before the com- 
mencement of this action. The government pleads the Statute of 
Limitations, and it must be sustained. Congress alone can give him 
the relief which he seeks. Judgment Affirmed. 



SECTION III. 

The President's Diplomatic and Treaty Making Powers. 

JONES v. UNITED STATES. 

137 U. S., 202. 1890. 

This was an indictment, found in the District Court of the United 
States for the District of Maryland, alleging that Henry Jones, late 
of that District, on September 14, 1889, at Navassa Island, a place 
which then and there was under the sole and exclusive jurisdic- 
tion of the United States and out of the jurisdiction of any par- 
ticular state or district of the United States, murdered one Thomas 
N. Foster. Navassa Island was situated in the Caribbean Sea and 
contained a deposit of guano. An Act of Congress relating to 
the discovery and occupation by citizens of the United States of 
guano islands not within the lawful jurisdiction of any other gov- 
ernment, provided that the President should have the power to ex- 
tend the jurisdiction of the United States over the islands so oc- 
cupied. The District of Maryland was the District of the United 



34 Selected Cases in Constitutional Law. 

States into which Jones was first brought from Navassa Island. 
In the District Court the Government sought to establish the right 
of the federal court to try Jones for the murder committed on 
the above mentioned island under R. S. 5339, providing for the 
punishment of murder committed "within any fort, arsenal, dock- 
yard, magazine, or any other place or district or country under 
the exclusive jurisdiction of the United States." The counsel for 
Jones questioned the validity of Act of Congress concerning guano 
islands, especially the power of the President under that Act. Jones 
was convicted in the District Court and an appeal was taken to the 
Supreme Court of the United States. 

Mr. Justice Gray delivered the opinion of the court. 

By the law of nations, recognized by all civilized States, dominion 
of new territory may be acquired by discovery and occupation, as 
well as by cession or conquest; and when citizens, or subjects of one 
nation, in its name, and by its authority or with its assent, take and 
hold actual, continuous, and useful possession (although only for the 
purpose of carrying on a particular business, such as catching and 
curing fish, or working mines) of territory unoccupied by any other 
government or its citizens, the nation to which they belong may 
exercise such jurisdiction and for such period as it sees fit over ter- 
ritory so acquired. This principle affords ample warrant for the 
legislation of Congress concerning guano islands. * * * * 

Who is the sovereign, de jure or de facto, of a territory is not a 
judicial, but a political question, the determination of which by the 
legislative and executive departments of any government conclusive- 
ly binds the judges, as well as all other officers, citizens, and sub- 
jects of that government. This principle has always been upheld by 
this court, and has been affirmed under a great variety of circum- 
stances. * * * * 

(In Williams ?;. Suffolk Ins. Co.) this court held that the action 
of the executive department, on the question to whom the sovereign- 
ty of those islands belonged, was binding and conclusive upon the 
courts of the United States, saying: "Can there by any doubt 
that when the executive branch of the government, which is charged 
with our foreign relations, shall in its correspondence with a foreign 
nation assume a fact in regard to the sovereignty of any island 
or country, it is conclusive on the judicial department? And in 
this view it is not material to inquire, nor is it the province of the 
court to determine, whether the executive be right or wrong. It 
is enough to know, that in the exercise of his constitutional func- 
tions he has decided the question. Having done this under the 
responsibilities which belong to him, it is obligatory on the people 
and government of the Union." "In the present case, as the ex- 
ecutive in his message, and in his correspondence with the govern- 
ment of Buenos Ayres, has denied the jurisdiction which it has 
assumed to exercise over the Falkland Islands, the fact must be 
taken and acted on by this court as thus asserted and maintained." 
13 Pet. 420. 

All courts of justice are bound to take judicial notice of the terri- 
torial extent of the jurisdiction exercised by the government whose 



Selected Cases in Constitutional Law. 35 

laws they administer, or of its recognition or denial of the sover- 
eignty of a foreign power, as appearing from the public acts of the 
legislature and executive, although those acts are not formally put 
in evidence, nor in accord with the pleadings. * * * * 

In the case st bar, the indictment alleges that the Island of 
Navassa, on which the murder is charged to have been committed, 
was at the time under the sole and exclusive jurisdiction of the 
United States, and out of the jurisdiction of any particular State or 
district of the United States, and recognized and considered by the 
United States as containing a deposit of guano within the meaning 
and terms of the laws of the United States relating to such islands, 
and recognized and considered by the United States as appertaining 
to the United States and in the possession of the United States un- 
der those laws. 

These allegations, indeed, if inconsistent with facts of which the 
court is bound to take judicial notice, could not be treated as conclu- 
sively supporting the verdict and judgment. But, on full considera- 
tion of the matter, we are of opinion that those facts are quite in 
accord with the allegations of the indictment. 

The power, conferred on the President of the United States by 
section i of the Act of Congress of 1856, to determine that a guano 
island shall be considered as appertaining to the United States, being 
a strictly executive power, affecting foreign relations, and the man- 
ner in which his determination shall be made known not having 
been prescribed by statute, there can be no doubt that it may be 
declared through the Department of State, whose acts in this re- 
gard are in legal contemplation the acts of the President. 

Conznction in the lower court ; s affirmed. 



THE PEOPLE v. GERKE. 
5 California, 381, (1855). 

On August 23, 1853, one Auguste Deck, a citizen of Prussia, 
died intestate in California, leaving, undisposed of, a large amount 
of real estate. The defendant, Gerke, was appointed administrator 
of the estate by the Probate Court. One Clark afterwards purchased 
from the absent heirs a large portion of the property. The Attor- 
ney General of California then brought this action to escheat 
Deck's estate to the State of California, on the ground that the 
laws of California provided for the escheat of the real estate held 
by foreigners in California, when such foreigners died intestate. 
The case was appealed to the highest court of California, from the 
judgment of the lower court, which had been rendered in favor of 
the State. 

Heydenfeldt, J., delivered the opinion of the court. 

By a convention between the United States and the Kingdom of 
Prussia, made in the year 1828, the fourteenth article provides, 
"And when on the death of any person holding real estate within 
the territory of the one party, such real estate would, by the laws 



36 Selected Cases in Constitutional Law. 

of the land, descend on a citizen or subject of the other, were he 
not disqualified by alienage, such citizen or subject shall be allowed 
a reasonable time to sell the same, and to withdraw the proceeds 
without molestation." 

The Attorney-General, in support of the information filed in this 
case, denies the power of the Federal government to make such a 
provision by treaty, and the determination of this case depends 
upon the solution of that question. Cases have frequently arisen 
where aliens have claimed to inherit by virtue of treaty provisions 
analogous to the one under consideration, and in all of them, so far 
as I have examined, the stipulations were enforced in favor of the 
foreign claimants. 

But in none of these cases was the question raised as to the power 
of the Federal government to make the treaty. It has been the 
practice of the government from an early period after the ratifica- 
tion of the Constitution, and its power is now, I believe, for the 
first time disputed. 

The language which grants the power to make treaties contains 
no words of limitation ; it does not follow that the power is unlim- 
ited. It must be subject to the general rule, that an instrument is 
to be construed so as to reconcile and give meaning and effect to all 
its parts. If it were otherwise, the most important limitation upon 
the powers of the Federal government would be ineffectual, and 
the reserved rights of the States would be subverted. This princi- 
ple of construction as applied, not only in reference to the Constitu- 
tion of the United States, but particularly in the relation of all the 
rest of it, to the treaty-making grant, was recognized both by Mr. 
Jefferson and Jchn Adams, two leaders of opposite schools of con- 
struction. See Jefferson's Works, Vol. Ill, p. 135 ; and Vol. VI, 
p. 560. 

It may, therefore, be assumed that, aside from the limitations and 
prohibitions of the Constitution upon the powers of the Federal 
government, "the power of treaty was given, without restraining it 
to particular objects, in as plenipotentiary a form as held by any 
sovereign in any other society." This principle, as broadly as I 
have deemed proper to lay it down, results from the form and ne- 
cessities of our government, as elicited by a general view of the 
Federal compact. Before the compact, the States had the power of 
treaty-making as potentially as any power on earth ; it extended to 
every subject whatever. By the compact, they expressly granted 
it to the Federal government in general terms, and prohibited it 
to themselves. 

The general government must, therefore, hold it as fully as the 
States held who granted it, with the exceptions which necessarily 
flow from a proper construction of the other powers granted, and 
those prohibited by the Constitution. The only questions, then, 
which can arise in the consideration of the validity of a treaty are : 
First, Is it a proper subject of treaty according to international law 
or the usage and practice of civilized nations? Second, Is it pro- 
hibited by any of the limitations in the Constitution? 



Selected Cases in Constitutional Law. 37 

Taking for illustration the present subject of treaty, no one will 
deny that, to the commercial States of the Union, and indeed to the 
citizens of any State who are engaged in foreign commerce, a stip- 
ulation to remove the disability of aliens to hold property is of para- 
mount importance, or, at any rate, it may be so considered by the 
States, and demanded as a part of their commercial polity. 

Now, as by the compact the States are absolutely prohibited from 
making* treaties, if the general government has not the power, then 
we must admit a lameness and incompleteness in our whole system, 
which renders us inferior to any other enlightened nation, in the 
power and ability to advance the prosperity of the people we govern. 

* * H< * 

One of the arguments at the bar against the extent of this power 
of treaty is, that it permits the Federal government to control the 
internal policy of the States, and, in the present case, to alter ma- 
terially the statutes of distribution. 

If this was so to the full extent claimed, it might be a sufficient 
answer to say, that it is one of the results of the compact, and, if 
the grant be considered too improvident for the safety of the States, 
the evil can be remedied by the Constitution-making power. I 
think, however, that no such consequence follows as is insisted. 
The statutes of distribution are not altered or affected. Alienage 
is the subject of the treaty. Its disability results from political 
reasons which arose at an early period of the history of civilization, 
and which the enlightened advancement of modern times, and 
changes in the political and social condition of nations, have ren- 
dered without force or consequence. The disability to succeed to 
property is alone removed, the character of the person is made polit- 
ically to undergo a change, and then the statute of distribution is 
left to its full effect, unaltered and unimpaired in word or sense. If 
there is one object more than another which belongs to our polit- 
ical relations, and which ought to be the subject of treaty regula- 
tions, it is the extension of this comity which is so highly favored 
by the liberal spirit of the age, and so condusive in its tendency to 
the peace and amity of nations. 

Even if the effect of this power was to abrogate to some extent 
the legislation of the States, we have authority for admitting it, if 
it does not exceed the limitations which we have cited from the 
work of Mr. Calhoun, and laid down as the rule to which we yield 
our assent. * * * * 

I can see no danger which can result from yielding to the Federal 
government the full extent of powers which it may claim from the 
plain language, intent, and meaning of the grant under considera- 
tion. Upon some subjects, the policy of a State government, as 
shown by her legislation, is dependent upon the policy of foreign 
governments, and would be readily changed upon the principle of 
mutual concession. This can only be effected by the action of that 
branch of the State sovereignty known as the general government, 
and when effected, the State policy must give way to that adopted 
by the governmental agent of her foreign relations. 



38 



Selected Cases in Constitutional Law. 



It results from these views that the treaty of 1828, with Prussia, 
is valid, and that aliens, subjects of Prussia, are protected by its 
provisions. 

The judgment is reversed, and the cause remanded. 

Note. — See also The Chinese Exclusion Case, page — 162. 



SECTION IV. 

The President's Executive Power. 

IN RE NEAGLE. 

135 U. S., 1. 1889. 

David Neagle, a deputy marshall of the United States for the 
District of California, was brought by writ of habeas corpus be- 
fore the United States Circuit Court upon a petition that he was 
being unlawfully imprisoned by the State of California upon the 
charge of having murdered one David S. Terry. Neagle claimed 
that the killing of Terry was done by him in pursuance of his duty 
as a deputy marshall in defending the life of Mr. Justice Field, a 
justice of the United States Supreme Court, while the latter was 
discharging his duties as circuit judge of the Ninth Circuit. The 
facts showed that there was a settled purpose on the part of Terry 
and his wife to murder Mr. Field on his official visit to California 
in 1889, because of some animosity due to a judicial decision ren- 
dered by him. Neagle had been appointed by the Attorney-Gen- 
eral of the United States, acting for the President, and the United 
States, to guard Mr. Field against attack. Terry met Mr. Field 
upon a railroad train and made a murderous attack upon him, 
which Neagle had reason to believe would result in his death unless 
he interferred, whereupon he shot and killed Terry. Neagle was 
arrested and imprisoned in the county jail in San Joaquin county, 
California, charged with murder. 

Upon petition the United States Circuit Court ruled "that the 
prisoner was in custody for an act done in pursuance of a law of the 
United States, and in custody in violation of the Constitution and 
laws of the United States, and it was therefore ordered that he be 
discharged from custody." An appeal was then taken to the Su- 
preme Court of the United States. 

Mr. Justice Miller ruled as follows : 

We cannot doubt the power of the President to take measures 
for the protection of a judge of one of the courts of the United 
States, who, while in the discharge of the duties of his office, is 
threatened with a personal attack which may probably result in his 
death, and we think it clear that where this protection is to be af- 
forded through the civil power, the Department of Justice is the 
proper one to set in motion the necessary means of protection. The 
correspondence already recited in this opinion between the marshal 



Selected Cases in Constitutional Law. 39 

of the Northern District of California, and the Attorney-General, 
and the District Attorney of the United States for that district, al- 
though prescribing no very specific mode of affording this protec- 
tion by the Attorney-General, is sufficient, we think, to warrant the 
marshal in taking the steps which he did take, in making the pro- 
visions which he did make, for the protection and defence of Mr. 
Justice Field. * * * * 

That there is a peace of the United States ; that a man assaulting 
a *judge of the United States while in the discharge of his duties 
violates that peace ; that in such case the marshal of the United 
States stands in the same relation to the peace of the United States 
which the sheriff of the county does to the peace of the State of 
California ; are questions too clear to need argument to prove them. 
That it would be the duty of a sheriff, if one had been present at 
this assault by Terry upon Judge Field, to prevent this breach of 
the peace, to prevent this assault, to prevent the murder which was 
contemplated by it, cannot be doubted. And if, in performing this 
duty, it became necessary for the protection of Judge Field, or of 
himself, to kill Terry, in a case where, like this, it was evidently a 
question of the choice of who should be killed, the assailant and 
violator of the law and disturber of the peace, or the unoffending 
man who was in his power, there can be no question of the author- 
ity of the sheriff to have killed Terry. So the marshal of the United 
States, charged with the duty of protecting and guarding the judge 
of the United Slates Court against this special assault upon his 
person and his life, being present at the critical moment, when 
prompt action was necessary, found it to be his duty, a duty which 
he had no liberty to refuse to perform, to take the steps which re- 
sulted in T-^ry'V death. This duty was imposed on him by the 
section of the Revised Statutes which we have recited [R. S., § 
788], in connexion with the powers conferred by the State of Cali- 
fornia upon its peace officers, which become, by this statute, in 
proper cases, transferred as duties to the marshals of the United 
States. 

But all these questions being conceded, it is urged against the 
relief sought by this writ of habeas corpus, that the question of 
the guilt of the prisoner of the crime of murder is a question to be 
determined by the laws of California, and to be decided by its 
courts, and that there exists no power in the government of the 
United States to take away the prisoner from the custody of the 
proper authorities of the State of California and carry him before 
a judge of the court of the United States, and release him without 
a trial by jury according to the laws of the State of California. 
That the statute of the United States authorizes and directs such 
a proceeding and such a judgment in a case where the offence 
charged against the prisoner consists in an act done in pursuance 
of a la^v of the United States and by virtue of its authority, and 
where the imprisonment of the party is in violation of the Constitu- 
tion and laws of the United States, is clear by its express language. 
* # * * 

The same answer is given in the present case. To the objection 



40 Selected Cases in Constitutional Law. 

made in argument, that the prisoner is discharged by this writ from 
the power of the State court to try him for the whole offence, the 
reply is, that if the prisoner is held in the State court to answer for 
an act which he was authorized to do by the law of the United 
States, which it was his duty to do as marshal of the United States, 
and if in doing that act he did no more than what was necessary 
and proper for him to do, he cannot be guilty of a crime under the 
law of the State of California. When these things are shown, it is 
established that he is innocent of any crime against the laws of the 
State, or of any other authority whatever. There is no occasion 
for any further trial in the State court, or in any court. The 
Circuit Court of the United States was as competent to ascertain 
these facts as any other tribunal, and it was not at all necessary that 
a jury should be impanelled to render a verdict on them. It is 
the exercise of a power common under all systems of criminal 
jurisprudence. There must always be a preliminary examination 
by a committing magistrate, or some similar authority, as to whether 
there is an offence to be submitted to a jury, and if this is submitted 
in the first instance to a grand jury, that is still not the right of 
trial by jury which is insisted on in the present argument. 

We have thus given, in this case, a most attentive consideration 
to all the questions of law and fact which we have thought to be 
properly involved in it. We have felt it to be our duty to examine 
into the facts with a completeness justified by the importance of the 
case, as well as from the duty imposed upon us by the statute, 
which we think requires of us to place ourselves, as far as possible, 
in the place of the Circuit Court and to examine the testimony and 
the arguments in it and to dispose of the party as law and justice 
require. 

The result at which we have arrived upon this examination is, 
that in the protection of the person and the life of Mr. Justice Field 
while in the discharge of his official duties, Neagle was authorized 
to resist the attack of Terry upon him ; that Neagle was correct in 
the belief that without prompt action on his part the assault of 
Terry upon th.2 judge would have ended in the death of the latter; 
that such being his well-founded belief, he was justified in taking 
the life of Ter -y, as the only means of preventing the death of the 
man who was ir tended to be his victim; that in taking the life of 
Terry, under the circumstances, he was acting under the authority 
of the law of the United States, and was justified in so doing; and 
that he is not liable to answer in the courts of California on account 
of his part in that transaction. 

We therefore affirm the judgment of the Circuit Court author- 
ising his discJiarge from the custody of the sheriff of San Joa- 
quin County. 



Selected Cases in Constitutional Law. 41 

IN RE DEBS. 

158 U. S., 564. 1894. 

In May, 1894, there arose a dispute between the Pullman Pal- 
ace Car Company and its employees which resulted in a strike of 
most of the employees of the company. The officers of the rail- 
way union tried to force a settlement of differences by creating a 
boycott against the cars of the company, and had prevented certain 
railroads running out of Chicago from operating their trains and 
were combining to extend such boycott by causing strikes among 
employees of all railroads hauling Pullman cars. A bill of com- 
plaint was filed on July 2, 1894, by the United States in the Circuit 
Court of the United States in Illinois against Debs and others. The 
bill set out that twenty-two railroads were engaged in interstate 
commerce, into and out of the city of Chicago ; that each of the 
roads was under contract to carry the mails, and were post roads 
of the government ; that they were required also to carry the troops 
and military forces of the United States. An injunction was issued 
by the court restraining the defendants and all persons conspiring 
with them from interfering, hindering or obstructing the business 
of the railroads as interstate carries and carriers of mail. This 
injunction was duly served upon the defendants. Subsequently, on 
July 17th, 1894, an attachment for contempt of court was issued 
against the officers of the railway union and others because of their 
disobedience to the order of the court, and after a hearing they 
were sentenced to imprisonment. Having been committed to jail, 
they applied to the Supreme Court for a write of habeas corpus. 
Mr. Justice Brewer delivered the opinion of the court: 
Under the power vested in Congress to establish postoffices and 
post roads, Congress has, by a mass of legislation, established the 
great postoffice system of the country, with all its details of organ- 
ization, its machinery for the transaction of business, defining what 
shall be carried and what not, and the prices of carriage, and also 
prescribing penalties for all offenses against it. Obviously these 
powers given to the national government over interstate commerce, 
and in respect; to the transportation of the mails were not dormant 
and unused. Congress had taken hold of these two matters, and by 
various and specific acts had assumed and exercised the powers 
given to it, and was in full discharge of its duty to regulate inter- 
state commerce and carry the mails. As, under the Constitu- 
tion, power over interstate commerce and the transportation of the 
mails is vested in the national government, and Congress by virtue 
of such grant has assumed actual and direct control, it follows that 
the national government may prevent any unlawful and forcible 
interference therewith. * * * Have the vast interests of the 
nation in interstate commerce, and in the transportation of the 
mails, no other protection than lies in the possible punishment of 
those who interfere with it? * * * The entire strength of the 
nation may be used to enforce in any part of the land the full and 
free exercise of all national powers and the security of all rights 
entrusted by the Constitution to its care. The strong arm of the 



42 Selected Cases in Constitutional Law. 

national government may be put forth to brush away all obstruc- 
tions to the freedom of interstate commerce or the transportation 
of the mails. If the emergency arises, the army of the nation, and 
all its militia are at the service of the nation to co.m|pel obedience 
to its laws. * * * So, in the case before us, the right to use 
force does not exclude the right of appeal to the courts for a judi- 
cial determination and for the exercise of all their powers of pre- 
vention. * * * Summing up our conclusions, we hold that the 
government of the United States is one having jurisdiction over 
every foot of soil within its territory, and acting directly upon each 
citizen ; * * * that to it is committed power over interstate 
commerce and the transmission of the mail ; * * * that in the 
exercise of those powers it is competent for the nation to remove 
all obstructions upon highways, natural or artificial, to the passage 
of interstate commerce or the carrying of the mail ; that while it 
may be competent for the government (through the executive 
branch and in the use of the entire executive power of the nation) 
to forcibly remove all such obstructions, it is equally within its com- 
petency to appeal to the civil courts for an inquiry and determina- 
tion as to the existence and character of any alleged obstructions, 
and if such are found to exist, or threaten to occur, to invoke the 
powers of those courts to remove or restrain such obstructions. 
* * * * 

The petition for a writ of habeas corpus is denied. 



SECTION V. 

The President's Legislative Power. 

FIELD v. CLARK. 

143 U. S., 649. 1 891. 

This was a suit brought by Marshall Field & Co., importers, in 
the Circuit Court of the United States for the Northern District 
of Illinois, against John M. Clark, the collector of the port of Chi- 
cago, to recover duties claimed to have been illegally exacted on 
imported merchandise. The main issue was whether the Tariff 
Act of October 1, 1890, had itself the force of law. One of the 
grounds upon which the validity of the act was attacked was that 
it delegates to the President the power of levying taxes and duties, 
which power, by Sections 1 and 8 of Article 1 of the Constitution, 
is vested in Congress. The Circuit Court decided that the duty 
was legally exacted and gave judgment against Marshall Field & 
Co., who thereupon appealed the case to the Supreme Court of the 
United States. 

Mr. Justice Harlan delivered the opinion of the court. 

The plaintiffs in error contend that this section, so far as it au- 



Selected Cases in Constitutional Law. 43 

thorizes the President to suspend the provisions of the act relating 
to the free introduction of sugar, molasses, coffee, tea, and hides, 
is unconstitutional, as delegating to him both legislative and treaty- 
making powers, and, being an essential part of the system estab- 
lished by Congress, the entire act must be declared null and void. 
On behalf of the United States it is insisted that legislation of this 
character is sustained by an early decision of this court and by the 
practice of the government for nearly a century, and that, even if 
the third section were unconstitutional, the remaining parts of the 
act would stand. * * * * 

That Congress cannot delegate legislative power to the Presi- 
dent is a principle universally recognized as vital to the integrity 
and maintenance of the system of government ordained by the Con- 
stitution. The act of October I, 1890, in the particular under con- 
sideration, is not inconsistent with that principle. It does not, in 
any real sense, invest the President with the power of legislation. 
For the purpose of securing reciprocal trade with countries produc- 
ing and exporting sugar, molasses, coffee, tea, and hides, Congress 
itself determined that the provisions of the act of October 1, 1890, 
permitting the free introduction of such articles, should be sus- 
pended as to any country producing and exporting them, that im- 
posed exactions and duties on the agricultural and other products 
of the United States, which the President deemed, that is, which 
he found to be, reciprocally unequal and unreasonable. Congress 
itself prescribed, in advance, ( the duties to be levied, collected, and 
paid, on sugar, molasses, coffee, tea, or hides, produced by or ex- 
ported from such designated country, while the suspension lasted. 
Nothing involving the expediency or the just operation of such leg- 
islation was left to the determination of the President. The words, 
"he may deem," in the third section, of course, implied that the 
President would examine the commercial regulations of other coun- 
tries producing and exporting sugar, molasses, coffee, tea, and 
hides, and form a judgment as to whether they were reciprocally 
equal and reasonable, or the contrary, in their effect upon American 
products. But when he ascertained the fact that duties and axac- 
tions, reciprocally unequal and unreasonable, were imposed upon 
the agricultural or other products of the United States by a coun- 
try producing and exporting sugar, molasses, coffee, tea, or hides, 
it became his duty to issue a proclamation declaring the suspen- 
sion, as to that country, which Congress had determined should 
occur. He had no discretion in the premises except in respect to 
the duration of the suspension so ordered. But that related only 
to the enforcement of the policy established by Congress. As the 
suspension was absolutely required when the President ascertained 
the existence of a particular fact, it cannot be said that in ascer- 
taining that fact and in issuing his proclamation, in obedience to 
the legislative will, he exercised the function of making laws. Leg- 
islative power was exercised when Congress declared that the sus- 
pension should take effect upon a named contingency. What the 
President was required to do was simply in execution of the act of 



44 Selected Cases in Constitutional U 



aw. 



Congress. It was not the making of law. He was the mere agent 
of the law-making department to ascertain and declare the event 
upon which its expressed will was to take effect. It was a part of 
the law itself as it left the hands of Congress that the provisions, 
full and complete in themselves, permitting the free introduction 
of sugars, molasses, coffee, tea, and hides, from particular countries, 
should be suspended, in a given contingency, and that in case of 
such suspension, certain duties should be imposed. * * * * 

What has been said is equally applicable to the objection that the 
third section of the act invests the President with treaty making 
power. t 

The court is of opinion that the third section of the act of Octo- 
ber i, 1890, is not liable to the objection that it. transfers legisla- 
tive and treaty making power to the President. 

(The Supreme Court affirmed the judgment of the Circuit 
Court.) 



SECTION VI. 

The President's Pardoning Power. 

EX PARTE GARLAND. 

4 WALLACE, 333. 1866. 

The petitioner, Garland, was an attorney and a citizen of Arkan- 
sas. In May, 1861, Arkansas purported to withdraw from the 
Union and attached herself to the Confederate States. The peti- 
tioner followed the State and was one of her representatives in 
the Congress of the Confederacy. In July, 1865, he received from 
the President of the United States a full pardon for all offences 
committed by his participation, direct or implied, in the rebellion. 
On July 2, 1862, Congress passed an act prescribing an oath to be 
taken by every person elected or appointed to any office of honor 
or profit in the United States. On January 24, 1865, Congress, 
by a supplementary act, extended its provisions to attorneys of the 
courts of the United States. O'ne of the sentences in the pre- 
scribed oath was, "that he has not voluntarily given aid, counte- 
nance, counsel, or encouragement to persons engaged in armed hos- 
tility to the United States. Garland produced his pardon and peti- 
tioned the Supreme Court for leave to practice as an attorney be- 
fore the court. 

Mr. Justice Field delivered the opinion of the court. 

The statute is directed against parties who have offended in any 
of the particulars embraced by these clauses. And its object is to 
exclude them from the profession of the law, or at least from its 
practice in the courts of the United States. As the oath prescribed 
cannot be taken by these parties, the act, as against them, operates 
as a legislative decree of perpetual exclusion. And exclusion from 
any of the professions or any of the ordinary avocations of life for 



Selected Cases in Constitutional Law. 45 

past conduct can be regarded in no other light than as punishment 
for such conduct. The exaction of the oath is the mode provided 
for ascertaining the parties upon whom the act is intended to oper- 
ate, and instead of lessening, increases its objectionable character. 
All enactments of this kind partake of the nature of bills of pains 
and penalties, and are subject to the constitutional inhibition against 
the passage of bills of attainder, under which general designation 
they are included. 

In the exclusion which the statute adjudges its imposes a punish- 
ment for some of the acts specified which were not punishable at 
the time they were committed ; and for other of the acts it adds 
a new punishment to that before prescribed, and it is thus brought 
within the further inhibition of the Constitution against the passage 
of an ex post faflo law. * * * * 

The profession of an attorney and counsellor is not like an office 
created by an act of Congress, which depends for its continuance, 
its powers, and its emoluments upon the will of its creator, and the 
possession of which may be burdened with any conditions not pro- 
hibited by the Constitution. Attorneys and counsellors are not offi- 
cers of the United States ; they are not elected or appointed in the 
manner prescribed by the Constitution for the election and appoint- 
ment of such officers. They are officers of the court, admitted as 
such by its order, upon evidence of their possessing sufficient legal 
learning and, fair private character. It has been the general prac- 
tice in this country to obtain this evidence by an examination of the 
parties. In this court the fact of the admission of such officers in 
the highest court of the States to which they respectively belong, 
for three years preceding their application, is regarded as sufficient 
evidence of the posssesion of the requisite legal learning, and the 
statement of counsel moving their admission sufficient evidence that 
their private and professional character is fair. The order of ad- 
mission is the judgment of the court that the parties possess the 
requisite qualifications as attorney and counsellors, and are entitled 
to appear as such and conduct causes therein. From its entry the 
parties become officers of the court, and are responsible to it for 
professional misconduct. They hold their office during good be- 
havior, and can only be deprived of it for misconduct ascertained 
and declared by the judgment of the court after opportunity to be 
heard has been afforded * * * * 

The attorney and counsellor being, by the solemn judicial act of 
the court, clothed with his office, does not hold it as a matter of 
grace and favor. The right which it confers upon him to appear 
for suitors, and to argue causes, is something more than a mere 
indulgence, revocable at the pleasure of the court, or at the com- 
mand of the legislature. It is a right of which he can only be de- 
prived by the judgment of the court, for moral or professional de- 
linquency. 

The legislature may undoubtedly prescribe qualifications for the 
office, to which he must conform, as it may, where it has exclusive 
jurisdiction, prescribe qualifications for the pursuit of any of the 



46 Selected Cases in Constitutional Law. 

ordinary avocations of life. The question, in this case, is not as to 
the power of Congress to prescribe qualifications, but whether that 
power has been exercised as a means for the infliction of punish- 
ment, against the prohibition of the Constitution. That this result 
cannot be effected indirectly' by a State under the form of creating 
qualifications we have held in the case of Cummings v. The State 
of Missouri [4 Wall. 277], and the reasoning by which that conclu- 
sion was reached applies equally to similar action on the part of 
Congress. 

This view is strengthened by a consideration of the effect of the 
pardon produced by the petitioner, and the nature of the pardoning 
power of the President. 

The Constitution provides that the President "shall have power 
to grant reprieves and pardons for offences against the United 
States, except in cases of impeachment." Article II. § 2. 

The power thus conferred is unlimited, with the exception stated. 
It extends to every offence known to the law, and may be exercised 
at any time after its commission, either before legal proceedings are 
taken, or during their pendency, or after conviction and judgment. 
This power of the President is not subject to legislative control. 
Congress can neither limit the effect of his pardon, nor exclude 
form its exercise any class of offenders. The benign prerogative of 
mercy reposed in him cannot be fettered by any legislative restric- 
tions. 

Such being the case, the inquiry arises as to the effect and oper- 
ation of a pardon, and on this point all the authorities concur. A 
pardon reaches both the punishment prescribed for the offence and 
the guilt of the offender ; and when the pardon is full, it releases the 
punishment and blots out of existence the guilt, so that in the eye 
of the law the offender is as innocent as if he had never committed 
the offence. If granted before conviction, it prevents any of the 
penalties and disabilities consequent upon conviction from attaching ; 
if granted after conviction, it removes the penalties and disabilities, 
and restores him to all his civil rights ; it makes him, as it were, a 
new man, and gives him a new credit and capacity. 

There is only this limitation to its operation: it does not restore 
offices forfeited, or property or interests vested in others in conse- 
quence of the conviction and judgment. 

The pardon produced by the petitioner is a full pardon "for all 
offences by him committed, arising from participation, direct or im- 
plied, in the Rebellion," and is subject to certain conditions which 
have been complied with. The effect of this pardon is to relieve the 
petitioner from all penalities and disabilities attached to the offence 
of treason, committed by his participation in the Rebellion. So far 
as that offence is concerned, he is thus placed beyond the reach of 
punishment of any kind. But to exclude him, by reason of that 
offence, from continuing in the enjoyment of a previously acquired 
right, is to enforce a punishment for that offence notwithstanding 
the pardon. If such exclusion can be effected by the exaction of an 
expurgatory oath covering the offence, the pardon may be avoided, 



Selected Cases in Constitutional Law. 47 

and that accomplished indirectly which cannot be reached by direct 
legislation. It is not within the constitutional power of Congress 
thus to inflict punishment beyond the reach of executive clemency. 
From the petitioner, therefore, the oath required by the act of Janu- 
try 24th, 1865, could not be exacted, even if that act were not sub- 
ject to any other objection than the one thus stated. 

It follows, from the views expressed, that the prayer of the peti- 
tioner must be granted. 

Note. — See also Cummings v. Missouri, 4 Wall, 227 ; Ex parte 
Wells, 18, Howard 307. 



SECTION VII. 

The President's Military Power. 

LUTHER v. BORDEN. 

7 Howard, i. 1848. 

At the time of the American Revolution, Rhode Island did not, 
as did the other States, adopt a new Constitution, but continued 
the form of government established by the charter of Charles II 
in 1663, making only such alterations by acts of the Legislature as 
were necessary to adapt it to its condition and rights as an inde- 
pendent State. Many citizens became dissatisfied with the charter 
government. A convention was called to draw up a new Consti- 
tution,, to be submitted to the people of the State and a vote taken 
upon it. On the return of the votes, the convention declared that 
the Constitution was adopted and ratified by a majority of the 
people of the State. Elections for Governor, members of the Leg- 
islature and other offices were then held. These officers assembled 
and proceeded to organize the new government. The charter gov- 
ernment did not acquiesce in the proceedings, but passed laws de- 
claring void the new Constitution ; put the State under martial law 
and called out the militia. The house of the plaintiff, Martin 
Luther, was broken into in order to arrest him for supporting the 
authority of the new government. This was an action of trespass 
by him against the defendants, who were in the military service of 
the charter government. The defence was that the acts were jus- 
tified on the ground of the insurrection and because they were in 
the military service of the State. The plaintiff replied that the tres- 
pass was committed by the defendants of their own proper wrong, 
as the charter government no longer existed. 

The issue was then raised as to which government was the legal- 
ly constituted one. A verdict in favor of the old government and 
the defendants was rendered in the United States Circuit Court. 
An appeal was taken to the Supreme Court. 

Chief Justice Taney delivered the opinion. 

The question which the plaintiff proposed to raise by the 



48 Selected Cases in Constitutional Law. 

testimony he offered has not heretofore been recognized as a judi- 
cial one in any of the State courts. In forming the constitutions of 
the different States, after the Declaration of Independence, and in 
the various changes and alterations which have since been made, the 
political department has always determined whether the proposed 
constitution or amendment was ratified or not by the people of the 
State, and the judical power has followed its decision. In Rhode 
Island, the question has been directly decided. Prosecutions were 
there instituted against some of the persons who had been active in 
the forcible opposition to the old government. And in more than 
one of the cases evidence was offered on the part of the defence sim- 
ilar to the testimony offered in the Circuit Court, and for the same 
purpose ; that is, for the purpose of showing that the proposed con- 
stitution had been adopted by the people of Rhode Island, and had, 
therefore, become the established government, and consequently that 
the parties accused were doing nothing more than their duty in en- 
deavoring to support it. 

But the courts uniformly held that the inquiry proposed to be 
made belonged to the political power and not to the judicial; that it 
rested with the political power to decide whether the charter gov- 
ernment had been displaced or not ; and when that decision was 
made, the judicial department would be bound to take notice of it 
as the paramount law of the State, without the aid of oral evidence 
or the examination of witnesses ; that, according to the laws and 
institutions of Rhode Island, no such change had been recognized 
by the political power ; and that the charter government was the 
lawful and established government of the State during the period 
in contest, and that those who were in arms against it were insur- 
gents, and liable to punishment. * * * * 

Moreover, the Constitution of the United States, as far as it has 
provided for an emergency of this kind, and authorized the general 
government to interfere in the domestic concerns of a State, has 
treated the subject as political in its nature, and placed the power 
in the hands of that department. 

The fourth section of the fourth article of the Constitution of the 
United States provides that the United States shall guarantee to 
every State in the Union a republican form of government, and 
shall protect each of themi against invasion ; and on the application 
of the legislature or of the executive (when the legislature cannot 
be convened) against domestic violence. 

Under this article of the Constitution it rests with Congress to 
decide what government is the established one in a State. For as 
the United States guarantee to each State a republican government, 
Congress must necessarily decide what government is established 
in the State before it can determine whether it is republican or not. 
And when the senators and representatives of a State are admitted 
into the council of the Union, the authority of the government 
under which they are appointed, as well as its republican character, 
is recognized by the proper constitutional authority. And its deci- 
sion is binding on every other department of the government, and 



Selected Cases in Constitutional Law. 49 

could not be questioned in a judicial tribunal. It is true that the 
contest in this case did not last long enough to bring the matter to 
this issue. * * * Congress was not called upon to decide the 
controversy. Yet the right to decide was placed there, and not in 
the courts. 

So, too, as relates to the clause in the above-mentioned article of 
the Constitution, providing for cases of domestic violence. It 
rested with Congress, too, to determine upon the means proper to 
be adopted to fulfill this guarantee. They might, if they had deemed 
it most advisable to do so, have placed it in the power of a court 
to decide when the contingency had happened which required the 
Federal government to interfere. But Congress thought other- 
wise, and no doubt wisely; and by the act of February 28, 1795, 
provided, that, "in case of an insurrection in any State against the 
government thereof, it shall be lawful for the President of the 
United States, on application of the legislature of such State or of 
the executive, when the legislature cannot be convened, to call forth 
such number of the militia of any other State or States, as may be 
applied for, as he may judge sufficient to suppress such insurrec- 
tion." 

By this act, the power of deciding whether the exigency had 
arisen upon which the government of the United States is bound 
to interfere, is given to the President. He is to act upon the ap- 
plication of the legislature, or of the executive, and consequently 
he must determine what body of men constitute the legislature, and 
who is the governor, before he can act. The fact that both parties 
claim the right to the government cannot alter the case, for both 
cannot be entitled to it. If there is an armed conflict, like the one 
of which we are speaking, it is a case of domestic violence, and 
one of the parties must be in insurrection against the lawful gov- 
ernment. And the President must, of necessity, decide which is; 
the government, and which party is unlawfully arrayed against it, 
before he can perform the duty im(posed upon him by the act of 
Congress. 

After the President has acted and called out the militia, is a Cir- 
cuit Court of the United States authorized to inquire whether his 
decision was right? Could the court, while the parties were actual- 
ly contending in arms for the possession of the government, call 
witnuesses before it, and inquire which party represented a ma- 
jority of the people? If it could, then it would become the duty of 
the court (provided it came to the conclusion that the President 
had decided incorrectly) to discharge those who were arrested or 
detained by the troops in the service of the United States, or the 
government which the President was endeavoring to maintain. If 
the judicial power extends so far, the guarantee contained in the 
Constitution of the United States is a guarantee of anarchy, and 
not of order. Yet if this right does not reside in the courts, when 
the conflict is raging — if the judicial power is, at that time, bound 
to follow the decision of the political, it must be equally bound 
when the contest is over. It cannot, when peace is restored, pun- 



50 Selected Cases in Constitutional Law. 

ish as offences and crimes the acts which it before recognized, and 
was bound to recognize, as lawful. 

It is true that in this case the militia were not called out by the 
President. But upon the application of the governor under th« 
charter government, the President recognized him as the executive 
power of the State, and took measures to call out the militia to sup- 
port his authority, if it should be found necessary for the general 
government to interfere ; and it is admitted in the argument that it 
was the knowledge of this decision that put an end to the armed 
opposition to the charter government, and prevented any further 
efforts to establish by force the proposed constitution. The inter- 
ference of the President, therefore, by announcing his determina- 
tion, was as effectual as if the militia had been assembled under his 
orders. And it should be equally authoritative. For certainly no 
court of the United States, with a knowledge of this decision, 
would have been justified in recognizing the opposing party as the 
lawful government, or in treating as wrongdoers or insurgents the 
officers of the government which the President had recognized, 
and was prepared to support by an armed force. In the case of for- 
eign nations, the government acknowledged by the President is al- 
ways recognized in the courts of justice. And this principle has 
been applied by the act of Congress to the sovereign State of the 
Union. 

It is said that this power in the President is dangerous to liber- 
ty, and may be abused. All power may be abused if placed in un- 
worthy hands. But it would be difficult, we think, to point out 
any other hands in which this power would be more safe, and at the 
same time equally effectual. When citizens of the same State are 
in arms against each other, and the constituted authorities unable 
to execute the laws, the interposition of the United States must 
be prompt, or it is of little value. The ordinary course of proceed- 
ings in courts of justice would be utterly unfit for the crisis. And 
the elevated office of the President, chosen as he is by the people 
of the United States, and the high responsibility he could not fail 
to feel when acting in a case of so much moment, appear to furnish 
as strong safeguards against a wilful abuse of power as human 
prudence and foresight could well provide. At all events, it is con- 
ferred upon him by the Constitution and laws of the United States, 
and must, therefore, be respected and enforced in its judicial tri- 
bunals. Judgment of the Circuit Court is affirmed. 



MARTIN v. MOTT. 

12 WH EATON, 19. 1827. 

This was an action originally begun in the courts of New York 
to recover certain goods and chattels belonging to Jacob E. Mott, 
the plaintiff in the lower court, which had been taken to satisfy a 
fine and forfeiture imposed upon him by a court-martial, for a 
failure to enter the service of the United States as a militia man, 



Selected Cases in Constitutional Law. 51 

when called upon by the President of the United States, during 
the war with Great Britain in 1812. The plaintiff claimed that the 
taking- of his goods was unjustifiable and among things questioned 
the authority of the President to decide whether the particular ex- 
igency had arisen to justify the calling forth of the militia, as con- 
templated in the words of the Constitution, and acts of Congress 
providing the President with power "to execute the laws of the 
Union, suppress insurrections and repel invasions." The highest 
court of the State of New York gave judgment in favor of Mott, 
the plaintiff in the lower court, whereupon an appeal was taken to 
the Supreme Court of the United States. 

The opinion was delivered by Mr. Justice Story. 

"For the more clear and exact consideration of the subject, it 
may be necessary to refer to the Constitution of the United States, 
and some of the provisions of the act of 1795. The Constitution 
declares that Congress shall have power 'to provide for calling 
forth the militia, to execute the laws of the Union, suppress in- 
surrections, and repel invasions ;' and also 'to provide for organ- 
izing, arming, and discipling the militia, and for governing 
such part of them as may be employed in the service of the Unit- 
ed States." In pursuance of this authority, the act of 1795 has 
provided, "that whenever the United States shall be invaded, or be 
in imminent danger of invasion from any foreign nation or Indian 
tribe, it shall be lawful for the President of the United States to 
call forth such number of the militia of the State or States most 
convenient to the place of danger, or scene of action, as he may 
judge necessary to repel such invasion, and to issue his order for 
that purpose to such officer or officers of the militia as he shall 
think proper," And like provisions are made for the other cases 
stated in the Constitution. It has not been denied here that the 
act of 1795 is within the constitutional authority of Congress, or 
that Congress may not lawfully provide for cases of imminent dan- 
ger of invasion, as well as for cases where an invasion has actual- 
ly taken place. In our opinion there is no ground for a doubt on 
this point, even if it had been relied on, for the power to provide 
for repelling invasions includes the power to provide against the 
attempt and danger of invasion, as the necessary and proper means 
to effectuate the object. One of the best means to repel invasion 
is to provide the requisite force for action before the invader him- 
self has reached the soil. 

"The power thus confided by Congress to the President is, doubt- 
less, of a very high and delicate nature. A free people are natural- 
ly jealous of the exercise of military power; and the power to call 
the militia into actual service is certainly felt to be one of no or- 
dinary magnitude. But it is not a power which can be executed 
without a correspondent responsibility. It is, in its terms, a lim- 
ited power confined to cases of actual invasion, or of imminent dan- 
ger of invasion. If it be a limited power, the question arises, by 
whom is the exigency to be judged of and decided? Is the Pres- 
ident the sole and exclusive judge whether the exigency has arisen, 



52 Selected Cases in Constitutional Law. 

or is it to be considered as an open question, upon which every 
officer to whom the orders of the President are addressed may 
decide for himself, and equally open to be contested by every mili- 
tia-man who shall refuse to obey the orders of the President? We 
are all of opinion that the authority to decide whether the exigen- 
cy has arisen belongs exclusively to the President, and that his 
decision is conclusive upon all other persons. We think that this 
construction necessarily results from the nature of the power itself, 
and from the manifest object contemplated by the act of Congress. 
The power itself is to be exercised upon sudden emergencies, upon 
great occasions of state, and under circumstances which may be 
vital to the existence of the Union. A prompt and unhesitating 
obedience to orders is indispensable to the complete attainment of 
the object. The service is a military service, and the command of 
a military nature ; and in such cases every delay and every obsta- 
cle to an efficient and immediate compliance, necessarily tend to 
jeopardize the public interests. While subordinate officers or soldiers 
are pausing to consider whether they ought to obey, or are scrup- 
ulously weighing the evidence of the facts upon which the Com- 
mander-in-chief exercises the right to demand their services, the 
hostile enterprise may be accomplished without the means of re- 
sistance. If "the power of regulating the militia, and of command- 
ing its services in times of insurrection and invasion, are (as it has 
been emphatically said they are) natural incidents to the duties of 
superintending the common defence, and of watching over the in- 
ternal peace of the confederacy" (The Federalist, No. 29), these 
powers must be so construed as to the modes of their exercise as 
not to defeat the great end in view. If a superior officer has a right 
to contest the orders of the President upon his own doubts as to the 
exigency having arisen, it must be equally the right of every inferior 
officer and soldier ; and any act done by any person in furtherance of 
such orders would subject him to responsibility in a civil suit, in 
which his defence must finally rest upon his ability to establish the 
facts by competent proofs. Such a course would be subversive of 
all discipline, and expose the best-disposed officers to the chances 
of ruinous litigation. Besides, in many instances the evidence upon 
which the President might decide that there is imminent danger of 
invasion might be of a nature not constituting strict technical proof, 
or the disclosure of the evidence might reveal important secrets of 
state, which the public interest, and even safety, might imperiously 
demand to be kept in concealment. 

If we look at the language of the act of 1795, every conclusion 
drawn from the nature of the power itself is strongly fortified. 
The words are "whenever the United States shall be invaded, or 
be in imminent danger of invasion, &c, it shall be lawful for the 
President, &c, to call forth such number of the militia, &c, as he 
may judge necessary to repel such invasion." The power itself is 
confided to the Executive of the Union, to him who is, by the 
Constitution, "the commander-in-chief of the militia, when called 
into the actual service of the United States," whose duty it is to 



Selected Cases in Constitutional Law. 53 

"take care that the laws be faithfully executed," and whose respon- 
sibility for an honest discharge of his official obligations is secured 
by the highest sanctions. He is necessarily constituted the judge of 
the existence of the exigency in the first instance, and is bound to 
act according to his belief of the facts. If he does so act, and de- 
cides to call forth the militia, his orders for this purpose are in 
strict conformity with the provisions of the law ; and it would 
seem to follow, as a necessary consequence, that every act done 
by a subordinate officer, in obedience to such orders, is equally 
justifiable. The law contemplates that, under such circumstances, 
orders shall bt given to carry the power into effect ; and it cannot 
therefore be a correct inference that any other person has a just 
right to disobey them. The law does not provide for any appeal 
from the judgment of the President, or for any right in subordinate 
officers to review his decision, and in effect defeat it. Whenever a 
statute gives a discretionary power to any person, to be exercised 
by him upon his own opinion of certain facts, it is a sound rule of 
construction that the statute constitutes him the sole and exclusive 
judge of the existence of those facts. And in the present case we 
are all of opinion that such is the true construction of the Act of 
1795. It is no answer that such a power may be abused, for there 
is no power which is not susceptible of abuse. The remedy for 
this, as well as for all other official misconduct, if it should occur, 
is to be found in the Constitution itself. In a free government, the 
danger must be remote, since in addition to the high qualities which 
the Executive must be presumed to possess, of public virtue, and 
honest devotion to the public interests, the frequency of elections, 
and the watchfulness of the representatives of the nation, carry 
with them all the checks which can be useful to guard against 
usurpation or wanton tyranny. 

(The Supreme Court reversed the judgment of the State Court.) 
See also the case of Ex parte Milligan, page 200. 



54 Selected Cases in Constitutional Law. 



CHAPTER II. 
THE LEGISLATIVE DEPARTMENT. 

SECTION I. 

Power of Congress over Taxation. 

Sub Section A. 

Extent of the Federal Power. 

THE COLLECTOR v. DAY. 

ii Wallace^ 113. 1870. 

This suit was instituted by Day against the Collector of Internal 
Revenue of the United States to recover the sum of $61.51 which 
he had been compelled to pay as a tax upon his salary as a judge 
of the Court of Probate and Insolvency for the County of Barn- 
stable, Massachusetts, for the year 1866 and 1867. The salary was 
fixed by law and was paid out of the state treasury. It was con- 
tended that the act levying the tax was unconstitutional as the 
Federal Government could not impose a tax upon the salary of the 
judicial officer of a State. A judgment was given in favor of Day 
in the lower court whereupon an appeal was taken to the Supreme 
Court of the United States. 

Mr. Justice Nelson delivered the opinion of the court. 

The case presents the question whether or not it is competent for 
Congress, under the Constitution of the United States, to impose a 
tax upon the salary of a judicial officer of a State? 

In Dobbins v. the Commissioners of Erie County, 16 Pet. 435, it 
was decided that it was not competent for the legislature of a State 
to levy a tax upon the salary or emoluments of an officer of the 
United States. The decision was placed mainly upon the ground 
that the officer was a means or instrumentality employed for carry- 
ing into effect some of the legitimate powers of the government, 
which could not be interfered with by taxation or otherwise by the 
States, and that the salary or compensation for the service of the 
officer was inseparably connected with the office ; that if the officer, 
as such, was exempt, the salary assigned for his support or main- 
tenance while holding the office was also, for like reasons, equally 
exempt. 

The cases of McCulloch v. Maryland, 4 Wheat. 316, and Weston 
v. Charleston, 2. Pet. 449, were referred to as settling the principle 
that governed the case, namely, "that the State governments cannot 
lay a tax upon the constitutional means employed by the govern- 
ment of the Union to execute its constitutional powers." 

The soundness of this principle is happily illustrated by the Chief 



Selected Cases in Constitutional Law. 55 

Justice in McCulloch v. Maryland, 4 Wheat. 432. "If the States," 
he observes, "may tax one instrument employed by the government 
in the execution of its powers, they may tax any and every other 
instrument. They may tax the mail ; they may tax the mint ; they 
may tax patent- rights ; they may tax judicial process; they may 
tax all the means employed by the government to an excess which 
would defeat all the ends of government." "This," he observes, 
"was not intended by the American people. They did not design to 
make their government dependent on the States." Again, (lb. 427.) 
"That the power of taxing it (the bank) by the States may be 
exercised so far as to destroy it, is too obvious to be denied." And, 
in Weston v. The City of Charleston, 2 Pet. 466, he observes. "If 
the right to impose the tax exists, it is a right which, in its nature, 
acknowledges no limits. It may be carried to any extent within the 
jurisdiction of the State or corporation which imposes it which the 
will of each State and corporation may prescribe. * * * * 

It is a familiar rule of construction of the Constitution of the 
Union, that the sovereign powers vested in the State governments 
by their respective constitutions, remained unaltered and unimpair- 
ed, except so far as they were granted to the government of the 
United States. That the intention of the framers of the Constitu- 
tion in this respect might not be misunderstood, this rule of inter- 
pretation is expressly declared in the tenth article of the amend- 
ments, namely: "The powers not delegated to the United States 
are reserved to the States respectively, or, to the people." The gov- 
ernment of the United States, therefore, can claim no powers 
which are net granted to it by the Constitution, and the powers 
actually granted must be such as are expressly given, or given by 
necessary implication. 

The general government, and the States, although both exist 
within the same territorial limits, are separate and distinct sov- 
ereignties, acting separately and independently of each other, with- 
in their respective spheres. The former in its appropriate sphere is 
supreme; but the States within the limits of their powers not 
granted, or, in the language of the tenth amendment, "reserved," 
are as independent of the general government as that government 
within its sphere is independent of the States. * * * * 

Two of the great departments of the government, the executive 
and legislative, depend upon the exercise of the powers, or upon the 
people of the States. The Constitution guarantees to the States a 
republican form of government, and protects each against invasion 
or domestic violence. Such being the separate and independent 
condition of the States in our complex system, as recognized by the 
Constitution, and the existence of which is so indispensable, that, 
without them, the general government itself would disappear from 
the family of nations, it would seem to follow, as a reasonable, if 
not a necessary consequence, that the means and instrumentalities 
employed for carrying on the operations of their governments, for 
preserving their existence, and fulfilling the high and responsible 
duties assigned to them in the Constitution, should be left free and 



56 Selected Cases in Constitutional Law. 

unimpaired, should not be liable to be crippled, much less defeated 
by the taxing- power of another government, which power acknowl- 
edges no limits but the will of the legislative body imposing the tax. 
And, more especially, those means and instrumentalities which are 
the creation of their sovereign and reserved rights, one of which is 
the establishment of the judicial department, and the appointment 
of officers to administer their laws. Without this power, and the 
exercise of it, we risk nothing in saying that no one of the States 
under the form of government guaranteed by the Constitution 
could long preserve its existence. A despotic government might. 
We have said that one of the reserved powers was that to establish 
a judicial department ; it would have been more accurate, and in 
accordance with the existing state of things at the time, to have 
said the power to maintain a judicial department. All of the thir- 
teen States were in the possession of this power, and had exercised 
it at the adoption of the Constitution ; and it is not pretended that 
any grant of it to the general government is found in that instru- 
ment. It is, therefore, one of the sovereign powers vested in the 
States by their constitutions, which remained unaltered and unim- 
paird, and in respect to which the State is as independent of the 
paired, and in respect to which the State is as independent of the 
general government as that government is independent of the 
States. 

The supremacy of the general government, therefore, so much 
relied on in the argument of the counsel for the plaintiff: in error, 
in respect to the question before us, cannot be maintained. The 
two governments are upon an equality, and the question is whether 
the power "to lay and collect taxes" enables the general government 
to tax the salary of a judicial officer of the State, which officer is a 
means or instrumentality employed to carry into execution one of 
its most important functions, the administration of the laws and 
which concerns the exercise of a right reserved to the States? * 

* * * 

And if the means and instrumentalities employed by that govern- 
ment to carry into operation the powers granted to it are, neces- 
sarily, and, for the sake of self-preservation, exempt from taxation 
by the States, why are not those of the States depending upon 
their reserved powers, for like reasons, equally exempt from Fed- 
eral taxation ? Their unimpaired existence in the one case is as es- 
sential as in the other. It is admitted that there is no express 
provision in the Constitution that prohibits the general government 
from taxing the means and instrumentalities of the States, nor is 
there any prohibiting the States from taxing the means and in' 
strumentalities of that government. In both cases the exemption 
rests upon necessary implication, and is upheld by the great law 
of self-preservation ; as any government, whose means employed in 
conducting its operations, if subject to the control of another and 
distinct government, can exist only at the mercy of that govern- 
ment. Of what avail are these means if another power may tax 
them at discretion? 



Selected Cases in Constitutional Law. 57 

But we are referred to the Veazie Bank v. Fenno, 8 Wall. 533, 
in support of this power of taxation. That case furnishes a strong 
illustration of the position taken by the Chief Justice in McCulloch 
v. Maryland, namely, "That the power to tax involves the power to 
destroy." 

The power involved was one which had been exercised by the 
States since the foundation of the government, and had been, after 
the lapse of three-quarters of a century, annihiliated from excessive 
taxation by the general government, just as the judicial office in 
the present case might be, if subject, at all, to taxation by that gov- 
ernment. But, notwithstanding the sanction of this taxation by a 
majority of the court, it is conceded, in the opinion, that "the re- 
served rights of the States, such as the right to pass laws ; to give 
effect to laws through executive action; to administer justice 
through the courts, and to employ all necessary agencies for legiti- 
mate purposes of State government, are not proper subjects of the 
taxing power of Congress." This concession covers the case be- 
fore us, and adds the authority of this court in support of the doc- 
trine which we have endeavored to maintain. judgment affirmed. 



VEAZIE BANK v. FENNO. 

8 Wallace, 533. 1869. 

Congress passed an act on July 13, 1866, which provided, "That 
every national banking association, State bank or State banking as- 
sociation shall pay a tax of ten per centum on the amount of notes 
of any person, State bank or State banking association, used for 
circulation and paid out by them after the 1st day of August, 1866." 
Under this act a tax of ten per cent, was assessed upon the Veazie 
Bank, for its notes issued for circulation, after the day named in 
the act. The bank was a corporation chartered under the laws of 
the State of Maine, with authority to issue bank notes for circula- 
tion, and the notes on which the tax imposed by the act was col- 
lected, were issued under this authority. The bank paid the tax 
under protest. The Circuit Court for Maine, in which action was 
brought to recover the amount of the tax paid, being divided in its 
opinion, the case was brought to the Supreme Court upon ques- 
tion of the constitutionality of the act (1) That it was a direct tax 
and had not been apportioned according to population (2) That 
the act imposing the tax impairs a franchise granted by the State, 
and that Congress has no power to pass any law with that intent 
or effect. 

Opinion delivered by Chief Justice Chase: 

* * * * Much diversity of opinion has always prevailed upon 
the question, what are direct taxes. Attempts to answer it by ref- 
erence to the definitions of political economists have been frequent- 
ly made, but without satisfactory results. * * * '* We are obliged, 
therefore, to resort to historical evidence, and to seek the meaning 



58 Selected Cases in Constitutional Law. 



of the words in the use and in the opinion of those whose relations 
to the government, and means of knowledge, warranted them in 
speaking with authority. And, considered in this light, the mean- 
ing and application of the rule, as to direct taxes, appeals to us 
quite clear. It is, as we think, distinctly shown in every act of 
Congress on the subject. In each of these acts, a gross sum was 
laid upon the United States, and the total amount was apportioned 
to the several States, according to their respective numbers of in- 
habitants, as ascertained by the last preceding census. Having 
been apportioned, provision was made for the imposition of the tax 
upon the subjects specified in the act fixing its total sum * * * This 
review shows that personal property, contracts, occupations, and 
the like, have never been regarded by Congress as proper subjects 
of direct tax. * * * * It may be rightly affirmed, therefore, that 
in the practical construction of the Constitution by Congress, direct 
taxes have been limited to taxes on land and appurtenances, and 
taxes on polls, or capitation taxes. * * * * The tax under con- 
sideration is a tax on bank circulation, and may very well be class- 
ed under the head of duties. Certainly it is not, in the sense of 
the Constitution, a direct tax. * * * * Is it, then, a tax on a fran- 
chise granted by a State, which Congress, upon any principle ex- 
empting the reserved powers of the States from impairment by tax- 
ation, must be held to have no authority, to lay and collect. We do 
not say there may not be such a tax. It may be admitted that the 
reserved rights of the States, such as the right to pass laws, to 
give effect to laws through executive action, to administer justice 
through the courts, and to employ all necessary agencies for le- 
gitimate purposes of State government, are not proper subjects of 
the taxing power of Congress. But it cannot be admitted that 
franchises granted by a State are necessarily exempt from taxation ; 
for franchises are property, often very valuable and productive 
property, and when not conferred for the purpose of giving effect 
to some reserved power of a State, seem to be as properly objects 
of taxation as any other property. But in the case before us, the 
object of taxation is not the franchise, but property created or con- 
tracts made and issued under the franchise, or power to issue bank 
bills. * * >k * It is insisted, however, that the tax in the case 
before us is excessive, and so excessive as to indicate a purpose on 
the part of Congress to destroy the franchise of the bank, and is, 
therefore, beyond the constitutional power of Congress. The first 
answer to this is that the judicial cannot prescribe to the legisla- 
tive departments of the government limitations upon the exercise 
of its acknowledged powers. The power to tax may be exercised 
oppressively upon persons, but the responsibility of the legislature 
is not to the courts, but to the people by whom its members are 
elected. So if a particular tax bears heavily upon a corporation, or 
a class of corporations, it cannot for that reason only be pronounc- 
ed contrary to the Constitution. * * * * 

But there is another answer which vindicates equally the wisdom 
and the power of Congress. 



Selected Cases in Constitutional Law. 59 

It cannot be doubted that under the Constitution the power to 
provide a circulation of coin is given to Congress. And it is set- 
tled by the uniform practice of the government and by repeated 
decisions, that Congress may constitutionally authorize the emis- 
sion of bills of credit. It it not important here to decide whether 
the quality of legal tender, in payment of debts, can be constitution- 
ally imparted to these bills ; it is enough to say that there can be no 
question of the power of the government to emit them; to make 
them receivable in payment of debts to itself ; to fit them for use 
by those who see fit to use them in all the transactions of commerce ; 
to provide for their redemption ; to make them a currency, uniform 
in value and description, and convenient and useful for circulation. 
These powers, until recently, were only partially and occasionally 
exercised. Lately, however, they have been called into full activity, 
and Congress has undertaken to supply a currency for the entire 
country. 

The methods adopted for the supply of this currency were brief- 
ly explained in the first part of this opinion. It now consists of 
coin, of United States notes, and of the notes of the national banks. 
Both descriptions of notes may be properly described as bills of 
credit, for both are furnished by the government ; both are issued 
on the credit of the government ; and the government is responsi- 
ble for the redemption of both ; primarily as to the first descrip- 
tion, and immediately upon default of the bank, as to the second. 
When these bills shall be made convertible into coin, at the will of 
the holder, this currency will perhaps satisfy the wants of the com- 
munity, in respect to a circulating medium, as perfectly as any mix- 
ed currency that can be devised. 

Having thus, in the exercise of undisputed constitutional powers, 
undertaken to provide a currency for the whole country, it cannot 
be questioned that Congress may, constitutionally, secure the bene- 
fit of it to the people by appropriate legislation. To this end, Con- 
gress has denied the quality of legal tender to foreign coins, and 
has provided by law against the imposition of counterfeit and base 
coin on the community. To the same end, Congress may restrain 
by suitable enactments, the circulation as money of any notes not 
issued under ■ its authority. Without this power, indeed, its at- 
tempts to secure a sound and uniform currency for the country 
would be futile. 

Viewed in this light, as well as in the other light of a duty on 
contracts or property, we cannot doubt the constitutionality of the 
tax under consideration. 



60 Selected Cases in Constitutional Law. 

Sub-Section B. 

Limitations of the States' Power of Taxation. 

M'CULLOCH v. MARYLAND. 

4 Wheaton, 316. 1819. 

In 18 1 6 Congress incorporated "The Bank of the United States!' 
(This was the second United States Bank). In 1817 a branch of 
the bank was established in Baltimore, Maryland. On February 1 1, 
1818, the State of Maryland passed an act imposing a tax "on all 
Banks, or brar-ches thereof, in the State of Maryland, not charter- 
ed by the legislature." No notes were to be issued by such banks 
except on stamped paper. M'Culloch, the cashier of the Baltimore 
branch of the United States Bank, issued certain notes without us- 
ing stamped paper. The State thereupon brought suit in the courts 
of Maryland against M'Culloch, to recover the taxes claimed to be 
due under the statute and the penalties for the violation of the 
statute. 

(The statute provided that in case it was violated certain penal- 
ties should be imposed.) The State court gave judgment against 
M'Culloch, but he claimed that the State statute was unconstitu- 
tional and appealed to the Supreme Court of the United States. 

Mr. Chief Justice Marshall delivered the the opinion of the 
court. 

"1. The first question made in the cause, is, has Congress power 
to incorporate a bank? 

This government is acknowledged by all to be one of enumerated 
powers. The principle, that it can exercise only the powers grant- 
ed to it, would seem too apparent to have required to be enforced 
by all those arguments which its enlightened friends, while it was 
depending before the people, found it necessary to urge. That 
principle is now universally admitted. But the question respecting 
the extent of the powers actually granted, is perpetually arising, 
and will probably continue to arise, as long as our system shall ex- 
ist. 

In discussing these questions, the conflicting powers of the gen- 
eral and State governments must be brought into view, and the 
supremacy of their respective laws, when they are in opposition, 
must be settled. 

If any one proposition could command the universal assent of 
mankind, we might expect it would be this: that the government 
of the Union, though limited in its powers, is supreme within its 
sphere of action. This would seem to result necessarily from its 
nature. It is the government of all; its powers are delegated by 
all ; it represents all, and acts for all. Though any one State may 
be willing to control its operations, no State is willing to allow oth- 
ers to control them. The nation, on those subjects on which it can 
act, must necessarily bind its component parts. But this question 
is not left to mere reason : the people have, in express terms, de- 



Selected Cases in Constitutional Law. 61 

cided it, by saying, "this Constitution, and the laws of the United 
States, which shall be made in pursuance thereof," "shall be the 
supreme law of the land," and by requiring that the members of 
the State legislatures, and the officers of the executive and judicial 
departments of the States, shall take the oath of fidelity to it. 

The government of the United States, then, though limited in its 
powers, is supreme ; and its laws, when made in pursuance of the 
Constitution, form the supreme law of the land, "any thing in the 
constitution or laws of any State to the contrary notwithstand- 
ing." 

Among the enumerated powers we do not find that of establish- 
ing a bank or creating a corporation. But there is no phrase in the 
instrument which, like the articles of confederation, excludes inci- 
dental or implied powers ; and which requires that everything grant- 
ed shall be expressly and minutely described. Even the ioth amend- 
ment, which was framed for the purpose of quieting the excessive 
jealousies which had been excited, omits the word "expressly," and 
declares only that the powers "not delegated to the United States, 
nor prohibited to the States, are reserved to the States or to the 
people ;" thus leaving the question, whether the particular power 
which may become the subject of contest, has been delegated to the 
one government, or prohibited to the other, to depend on a fair 
construction of the whole instrument. * * * * 

Although, among the enumerated powers of government, we do 
not find the word "bank," or "incorporation," we find the great 
powers to lay and collect taxes ; to borrow money ; to regulate com- 
merce ; to declare and conduct a war ; and to raise and support 
armies and navies. The sword and purse, all the external rela- 
tions, and no inconsiderable portion of the industry of the nation, 
are intrusted to its government. It can never be pretended that 
these vast powers draw after them others of inferior importance, 
merely because they are inferior. Such an idea can never be ad- 
vanced. But it may, with great reason, be contended, that a govern- 
ment, intrusted with such ample powers, on the due execution of 
which the happiness and prosperity of the nation so vitally depends, 
must also be intrusted with ampje means for their execution. The 
power being given, it is the interest of the nation to facilitate its 
execution. It can never be their interest, and cannot be presumed 
to have been their intention, to clog and embarrass its execution by 
withholding the most appropriate means. Throughout this vast 
republic, from the St. Croix to the Gulf of Mexico, from the Atlan- 
tic to the Pacific, revenue is to be collected and expended, armies 
are to be marched and supported. The exigencies of the nation may 
require that the treasure raised in the North should be transported 
to the South, that raised in the East conveyed to the West, or that 
this order should be reversed. Is that construction of the Consti- 
tution to be preferred which would render these operations difficult, 
hazardous, and expensive? Can we adopt that construction, (un- 
less the words imperiously require it,) which would impute to the 
framers of that instrument, when granting these powers for the 



62 Selected Cases in Constitutional Law. 

public good, the intention of impeding their exercise by withholding 
a choice of means? If, indeed, such be the mandate of the Consti- 
tution, we have only to obey ; but that instrument does not profess 
to enumerate the means by which the powers it confers may be 
executed ; nor does it prohibit the creation of a corporation, if the 
existence of such a being be essential to the beneficial exercise of 
those powers. It is, then, the subject of fair inquiry, how far such 
means may be employed. 

It is not denied that the powers given to the government imply 
the ordinary means of execution. That, for example, of raising 
revenue, and applying it to national purposes, is admitted to imply 
the power of conveying money from place to place, as the exigencies 
of the nation may require, and of employing the usual means of 
conveyance. But it is denied that the government has its choice 
of means ; or, that it may employ the most convenient means, if, to 
employ them, it be necessary to erect a corporation. 

On what foundation does this argument rest? On this alone: 
The power of creating a corporation, is one appertaining to sover- 
eignty, and is not expressly conferred on Congress. This is true. 
But all legislative powers appertain to sovereignty. The original 
power of giving the law on any subject whatever, is a sovereign 
power ; and if the government of the Union is restrained from 
creating a corporation, as a means for performing its functions, on 
the single reason that the creation of a corporation is an act of sov- 
ereignty ; if the sufficiency of this reason be acknowledged, there 
would be some difficulty in sustaining the authority of Congress to 
pass other laws for the accomplishment of the same objects. 

The government which has a right to do an act, and has imposed 
on it the duty of performing that act, must, according to the dic- 
tates of reason, be allowed to select the means ; and those who con- 
tend that it may not select any appropriate means, that one partic- 
ular mode of effecting the object is excepted, take upon themselves 
the burden of establishing that exception. 

The creation of a corporation, it is said, appertains to sovereignty. 
This is admitted. But to what portion of sovereignty does it ap- 
pertain? Does it belong to one more than to another? In Ameri- 
ca, the powers of sovereignty are divided between the government 
of the Union and those of the States. They are each sovereign, 
with respect to the objects committed to it, and neither sovereign 
with respect to the objects committed to the other. * * * * 

But the Constitution of the United States has not left the right 
of Congress tc employ the necessary means, for the execution of 
the powers conferred on the government, to general reasoning. To 
its enumeration of powers is added that of making "all laws which 
shall be necessary and proper, for carrying into execution the fore- 
going powers, and all other powers vested by this Constitution, in 
the government of the United States, or in any department there- 

_r >f •%. % Mc ^ 

But the argument on which most reliance is placed, is drawn from 
the peculiar language of this clause. Congress is not empowered 



Selected Cases in Constitutional Law. 63 

by it to make all laws which may have relation to the powers con- 
ferred on the government, but such only as may be "necessary and 
proper" for carrying them into execution. The word "necessary" 
is considered as controlling the whole sentence, and as limiting the 
right to pass laws for the execution of the granted powers,, to such 
as are indispensable, and without which the power would be nuga- 
tory. That it excludes the choice of means, and leaves to Congress, 
in each case, that only which is most direct and simple. 

Is it true that this is the sense in which the word "necessary" is 
always used? Does it always import an absolute physical necessity, 
so strong, that one thing, to which another may be termed neces- 
sary, cannot exist without that other? We think it does not. If 
reference be had to its use, in the common affairs of the world, or 
in approved authors, we find that it frequently imports no more 
than that one thing is convenient, or useful, or essential to anoth- 
er. To employ the means necessary to an end, is generally under- 
stood as employing any means, calculated to produce the end, and 
not as being confined to those single means, without which the end 
would be entirely unattainable. Such is the character of human 
language, that no word conveys to the mind, in all situations, one 
single definite idea ; and nothing is more common than to use 
words in a figurative sense. Almost all compositions contain words, 
which, taken in their rigorous sense would convey a meaning dif- 
ferent from that which is obviously intended. It is essential to just 
construction, that many words which import something excessive, 
should be understood in a more mitigated sense — in that sense 
which common usage justifies. The word "necessary" is of this 
description. It has not a fixed character peculiar to itself. It ad- 
mits of all degrees of comparison ; and is often connected with 
other words, which increase or diminish the impression the mind 
receives of the urgency it imports. A thing may be necessary, very 
necessary, absolutely or indispensably necessary. To no mind 
would the same idea be conveyed, by these several phrases. This 
comment on the word is well illustrated, by the passage cited at 
the bar, from the ioth section of the ist article of the Constitution. 
It is, we think, impossible to compare the sentence which prohibits 
a State from laying "imposts, or duties on imports or exports, ex- 
cept what may be absolutely necessary for executing its inspection 
laws," with that which authorizes Congress "to make all laws which 
shall be necessary and proper for carrying into execution" the pow- 
ers of the general government, without feeling a conviction that 
the convention understood itself to change materially the meaning 
of the word "necessary/' by refixing the word "absolutely." This 
word, then, like others, is used in various senses ; and, in its con- 
struction, the subject, the context, the intention of the person using 
them, are all to be taken into view. * * * * 

This clause, as construed by the State of Maryland, _ would 
abridge and almost annihilate this useful and necessary right of 
the legislature to select its means. That this could not be intended, 
is, we should think, had it not been already controverted, too ap- 



64 Selected Cases in Constitutional Law. 

parent for controversy. We think so for the following reasons : — 

1. The clause is placed among the powers of Congress, not 
among the limitations on those powers. 

2. Its terms purport to enlarge, not to diminish the powers vest- 
ed in the government. It purports to be an additional power, not 
a restriction on those already granted. * * * * 

We admit, as all must admit, that the powers of the government 
are limited, and that its limits are not to be transcended. But we 
think the sound construction of the Constitution must allow to the 
national legislature that discretion, with respect to the means by 
which the power it confers are to be carried into execution, which, 
will enable that body to perform the high duties assigned to it, in 
the manner most beneficial to the people. Let the end be legitimate, 
let it be within the scope of the Constitution, and all means which 
are appropriate, which are plainly adapted to that end, which are 
not prohibited, but consist with the letter and spirit of the Consti- 
tution, are constitutional. * * * * 

After the most deliberate consideration, it is the unanimous and 
decided opinion of this Court, that the act to incorporate the Bank 
of the United States is a law made in pursuance of the Constitu- 
tion, and is a part of the supreme law of the land. 

It being the opinion of the court that the act incorporating the 
bank is constitutional ; and that the power of establishing a branch 
in the State of Maryland might be properly exercised by the bank 
itself, we proceed to inquire: — 

2. Whether the State of Maryland may, without violating the 
Constitution, tax that branch? 

That the power of taxation is one of vita! importance ; that it is 
retained by the States; that it is not abridged by the grant of & 
similar power to the government of the Union ; that it is to be 
concurrently exercised by the two governments: are truths which 
have never been denied. But, such is the paramount character of 
the Constitution, that its capacity to withdraw any subject from 
the action of even this power, is admitted. The States are express- 
ly forbidden to lay any duties on imports or exports, except what 
may be absolutely necessary for executing their inspection laws. 
If the obligation of this prohibition must be conceded — if it may 
restrain a State from the exercise of its taxing power on imports 
and exports ; the same paramount character would seem to restrain, 
as it certainly may restrain a State from such other exercise of 
this power, as is in its nature incompatible with, and repugnant to, 
the constitutional laws of the Union. A law, absolutely repugnant 
to another, as entirely repeals that other as if express terms of re- 
peal were used. 

This great principle is, that the Constitution and the laws made 
in pursuance thereof are supreme; that they control the Constitu- 
tion and laws of the respective States ; and cannot be controlled by 
them. From this, which may be almost termed an axiom, other 
propositions are deduced as corollaries, on the truth or error of 
which and on their application of this case, the cause has been 



Selected Cases in Constitutional Law. 65 

supposed to depend. These are, ist, That a power to create im- 
plies a power to preserve. 2d, That a power to destroy if wielded 
by a different hand is hostile to, and incompatible with these pow- 
ers to create and preserve. 3d, That where this repugnancy ex- 
ists, that authority which is supreme must control, not yield to that 
over which it is supreme. 

The power of Congress to create, and of course to continue, the 
bank, was the subject of the preceding part of this opinion, and is 
no longer to be considered questionable. 

That the power of taxing it by the States may be exercised so 
as to destroy it, is too obvious to be denied. 

The sovereignty of a State extends to everything which exists 
by its own authority, or is introduced by its permission ; but does 
it extend to those means which are employed by Congress to car- 
ry into execution powers conferred on that body by the people of 
the United States? We think it demonstrable that it does not. 
Those powers are not given by the people of a single State. They 
are given by the people of the United States, to a government 
whose laws, made in pursuance of the Constitution, are declared 
to be supreme. Consequently, the people of a single State cannot 
confer a sovereignty which will extend over them. 

We find then, on just theory, a total failure of this original right 
to tax the means employed by the government of the Union, for 
the execution of its powers. 

That the power to tax involves the power to destroy ; that the 
power to destroy may defeat and render useless the power to cre- 
ate ; that there is a plain repugnance, in conferring on one gov- 
ernment a power to control the constitutional measure of another, 
which other, with respect to those very measures, is declared to 
be supreme over that which exerts the control, are propositions not 
to be denied. 

We are unanimously of the opinion, that the law passed by the 
legislature of Maryland, imposing a tax on the Bank of the United 
States, is unconstitutional and void. 



THOMPSON v. UNION PACIFIC RAILROAD COMPANY. 

9 Wallace, 579. 1869. 

The stockholders of the Union Pacific Railroad Company, which 
was incorporated by the territory of Kansas, brought suit in the 
United States Circuit Court for the District of Kansas to restrain 
the officers of the company from paying a tax levied by the State 
of Kansas on the property of the company in that State. The stock- 
holders contended that as the company enjoyed certain franchises 
granted by Congress, in return for which they were to carry Unit- 
ed States mail and transport troops in time of war, etc., the State 
was in reality taxing a Federal agency and hence the tax was un- 
constitutional as applied to the Union Pacific Railroad Company. 



66 Selected Cases in Constitutional Law. 

The judges of the Circuit Court were divided in their opinion, so 
the case was certified to the Supreme Court of the United States. 

Mr. Chief Justice Chase delivered the opinion of the court. 

The main argument for the complainants, however, is that the 
road, being constructed under the direction and authority of Con- 
gress, for the uses and purposes of the United States, and being a 
part of a system of roads thus constructed, is therefore exempt 
from taxation under State authority. It is to be observed that this 
exemption is not claimed under any act of Congress.lt is not asserted 
that any act declaring such exemption has ever received the sanc- 
tion of the National legislature. But it is earnestly insisted that the 
right of exemption arises from the relations of the road to the Gen- 
eral Government. It is urged that the aids granted by Congress 
to the road were granted in the exercise of its constitutional powers 
to regulate commerce, to establish post-offices and post-roads, to 
raise and support armies, and to suppress insurrection and invasion ; 
and that by the legislation which supplied aid, required security, 
imposed duties, and finally exacted, upon a certain contingency, a 
percentage of income, the road was adopted as an instrument of 
the government, and as such was not subject to taxation by the 
State. , 

The case of McCulloch v. Maryland is much relied on in support 
of this position. But we apprehend that the reasoning of the court 
in that case will hardly warrant the conclusion which counsel de- 
duce from it in this. In that case the main questions were, Wheth- 
er the incorporation of the Bank of the United States, with power 
to establish branches, was an act of legislation within the consti- 
tutional powers of Congress, and, whether the bank and its branch- 
es, as actually established, were exempt from taxation by State leg- 
islation. Both questions were resolved in the affirmative. * * * * 

It is unquestionably true that the court, in determining the second 
general question, already stated, did hold that the Bank of the 
United States, with its branches, was exempt from taxation by the 
State of Maryland, although no express exemption was found in 
the charter. But it must be remembered that the Bank of the Unit- 
ed States was a corporation created by the United States ; and, as 
an agent in the execution of the constitutional powers of the gov- 
ernment, was endowed by the act of creation with all its faculties, 
powers, and functions. It did not owe its existence, or any of its 
qualities, to State legislation. And its exemption from taxation 
was put upon this ground. Nor was the exemption itself without 
important limitations. It was declared not to extend to the real 
property of the bank within the State ; nor to interests held by citi- 
zens of the State in the institution. 

In like manner other means and operations of the government 
have been held to be exempt from State taxation : as bonds issued 
for money borrowed, Weston v. City of Charleston, 2. Pet. 467 ; 
certificates of indebtedness issued for money or supplies, The 
Banks v. The Mayor, 7 Wall. 24 ; bills of credit issued for circula- 
tion, Bank v. Supervisors, lb. 28. There are other instances in 



Selected Cases in Constitutional Law. 67 

which exemption, to the extent it is established in McCulioch v. 
Maryland, might have been held to arise from the simple creation 
and organization of corporations under acts of Congress, as in the 
case of the National Banking Associations ; but in which Congress 
thought fit to prescribe the extent to which State taxation may be 
applied. Van Allen v. The Assessors, 3 Id. 573 ; Bradley v. The 
People, 4 Id. 459; People v. Commissioners, lb. 244. In all these 
cases, as in the case of the Bank of the United States, exemption 
from liability to taxation was maintained upon the same ground'. 
The State tax held to be repugnant to the Constitution was impos- 
ed directly upon an operation or an instrument of the government. 
That such taxes cannot be imposed on the operations of the gov- 
ernment, is a proposition which needs no argument to support it. 
And the same reasoning will apply to instruments of the govern- 
ment, created by itself for public and constitutional ends. But we 
are not aware of any case in which the real estate, or other proper- 
ty of a corporation not organized under an act of Congress, has 
been held to be exempt, in the absence of express legislation to that 
effect, to just contribution, in common with other property, to 
the general expenditure for the common benefit, because of the 
employment of the corporation in the service of the government. 
* * * * 

We do not doubt the propriety or the necessity, under the Con- 
stitution, of maintaining the supremacy of the General Government 
within its constitutional sphere. We fully recognize the soundness 
of the doctrine, that no State has a "right to tax the means employ- 
ed by the government of the Union for the execution of its pow- 
ers." But we think there is a clear distinction between the means 
employed by the government and the property of agents employed 
by the government. Taxation of the agency is taxation of the 
means ; taxation of the property of the agent is not always, or gen- 
erally, taxation of the means. 

No one questions that the power to tax all property, business, and 
persons, within their respective limits, is original in the States and 
has never been surrendered. It cannot be so used, indeed, as to 
defeat or hinder the operations of the National government ; but it 
will be safe to conclude, in general, in reference to persons and 
State corporations employed in government service, that when 
Congress has not interposed to protect their property from State 
taxation, such taxation is not obnoxious to that objection. Lane 
County v. Oregon, 7 Wall. jy. * * * * 

The nature of the claims to exemption which would be set up, 
is well illustrated by that which is advanced in behalf of the com- 
plainants in the case before us. The very ground of claim is in 
the bounties of the General Government. The allegation is, that 
the government has advanced large sums to aid in construction of 
the road ; has contented itself with the security of a second mort- 
gage ; has made large grants of land upon no condition of benefit 
to itself, except that the company will perform certain services for 
full compensation, independently of those grants ; and will admit 



68 Selected Cases in Constitutional Law. 

the government to a very limited and wholly contingent interest in 
remote "net income. And because of these advances and these 
grants, and this fully compensated employment, it is claimed that 
this State corporation, owing its being to State law, and indebted 
for these benefits to the consent and active interposition of the 
State legislature, has a constitutional right to hold its property ex- 
empt from State taxation, and this without any legislation on the 
part of Congress which indicates that such exemption is deemed 
essential to the full performance of its obligations to the govern- 
ment. 

We are unable to find in the Constitution any warrant for the 
exemption from State taxation claimed in behalf of the complain- 
ants ; and must, therefore, answer the question certified to us 

In the affirmative. 

UNION PACIFIC RAILROAD COMPANY v. PENISTON. 

1 8 Wallace, 5. 1873. 

The State of Nebraska taxed the property of the Union Pacific 
Railroad Company in that State and the same question was raised 
as in Thompson v. Union Pacific Railroad Company. There was 
one point of difference, however, which the opinion of the Court 
brings out clearly. 

Mr. Justice Strong delivered the opinion of the court. 

"It is, however, insisted that the case of Thompson v. The Union 
Pacific Railroad Company differs from the case we have now in 
hand in the fact that it was incorporated by the Territorial legis- 
lature and the legislature of the State of Kansas, while these com- 
plainants were incorporated by Congress. We do not perceive that 
this presents an)^ reason for the application of a rule different from 
that which was applied in the former case. * * * * 

"It is, therefore, manifest that exemption of Federal agencies 
from State taxation is dependent, not upon the nature of the agents, 
or upon the mode of their constitution, or upon the fact that they 
are agents, but upon the effect of the tax ; that is, upon the ques- 
tion whether the tax does in truth deprive them of power to serve 
the government as they were intended to serve it, or does hinder 
the efficient exercise of their power. A tax upon their property has 
no such necessary effect. It leaves them free to discharge the du- 
ties they have undertaken to perform. A tax upon their operations 
is a direct obstruction to the exercise of Federal powers. 



. CALIFORNIA v. CENTRAL PACIFIC RAILROAD 

COMPANY. 
127 U. S., 1. 1887. 

The State of California laid a tax upon the property of trans- 
portation companies, including franchises conferred by the United 
States. The State brought suit to collect the tax in its own courts, 



Selected Cases in Constitutional Law. 69 

but the railroads removed the suits to the United States Circuit 
Court. The Central Pacific and other railroad companies resisted 
the tax on the ground that the State could not constitutionally levy 
such a tax. The Circuit Court gave judgment for the railroad, 
whereupon an appeal was taken to the Supreme Court of the 
United States. 

Mr. Justice Bradley delivered the opinion of the court. 

Assuming, then, that the Central Pacific Railroad Company, has 
received the important franchises referred to by grant of the Unit- 
ed States, the question arises whether they are legitimate subjects 
of taxation by the State. They were granted to the company for 
national purposes and to subserve national ends. It seems very 
clear that the State of California can neither take them away, nor 
destroy nor abridge them, nor cripple them by onerous burdens. Can 
it tax them? It may undoubtedly tax outside visible property of 
the company, situated within the State. That is a different thing. 
But may it tax franchises which are the grant of the United States ? 
In our judgment, it cannot. What is a franchise? Under the Eng- 
lish law Blackstone defines it as "a royal privilege or branch of the 
king's prerogative, subsisting in the hands of a subject." 2 Bl. Com. 
37. Generalized, and divested of the special form which it assumes 
under a monarchial government based on feudal traditions, a fran- 
chise is a right, privilege or power of public concern, whicbi ought 
not to be exercised by private individuals at their mere will ancl 
pleaure, but should be reserved for public control and administra- 
tion, either by the government directly, or by public agents, acting 
under such conditions and regulations as the government may im- 
pose in the public interest, and for the public security. Such rights 
and powers must exist under every form of society. They are al- 
ways educed by the laws and customs of the community. Under 
our system, their existence and disposal are under the control of 
the legislative department of the government, and they cannot be 
assumed or exercised without legislative authority. No private 
person can establish a public highway, or a public ferry, or railroad, 
or charge tolls for the use of the same, without authority from the 
legislature, direct or derived. These are franchises. No private 
person can take another's property, even for a public use, without 
such authority ; which is the same as to say, that the right of em- 
inent domain can only be exercised by virtue of a legislative grant. 
This is a franchise. No persons can make themselves a body cor- 
porate and politic without legislative authority. Corporate capaci- 
ty is a franchise. The list might be continued indefinitely. 

In view of this description of the nature of a franchise, how can 
it be possible that a franchise granted by Congress can be subject 
to taxation by a State without the consent of Congress? Taxation 
is a burden, and may be laid so heavily as to destroy the thing tax- 
ed, or render it valueless. As Chief Justice Marshall said in Mc- 
Culloch v. Maryland, "the power to tax involves the power to de- 
stroy." * * ■ * * 

The taxation of a corporate franchise merely as such, unless pur- 



70 Selected Cases in Constitutional Law. 

suant to a stipulation in the original charter of the company, is the 
exercise of an authority somewhat arbitrary in its character. It has 
no limitation but the discretion of the taxing power. The value of 
the franchise is not measured like that of property, but may be ten 
thousand or ten hundred thousand dollars, as the legislature may 
choose. Or, without any valuation of the franchise at all, the tax 
may be arbitrarily laid. It is not an idle objection, therefore, made 
by the company against the tax imposed in the present cases. 

Judgment affirmed. 



Sub-Section C. 

Direct and Indirect Taxes. 

HYLTON v. UNITED STATES. 

3 D'ALLAS, 171. 1796. 

This suit was originally brought in the Circuit Court for the Dis- 
trict of Virginia, by the United States against one Daniel Hylton 
to recover the penalty imposed by act of Congress of June 5, 1794, 
for not entering and paying the duty on a number of carriages for 
the conveyance of persons, which he kept for his own use. Plylton 
defended the suit on the ground that the tax was unconstitutional 
and void. The argument turned entirely upon the point whether 
the tax on carriages kept for private use was a direct tax. If it 
was not a direct tax, it was admitted to be rightly laid, with- 
in the first clause of the 8th section of Article I of the Constitution, 
which declares, "All duties, imposts and excises shall be uniform 
throughout the United States." If it were a direct tax, it was un- 
constitutional, under another clause of the same section of the Con- 
stitution, which provides, "no capitation or other direct tax shall 
be laid, unless in proportion to the census or enumeration of the 
inhabitants of the United States." The Circuit Court was divided 
in its opinion, whereupon Hylton confessed judgment as a founda- 
tion for this appeal to the Supreme Curt of the United States. 

The court delivered their opinions seriatim. 

The following opinion was delivered by Mr. Justice Chase: 
I think, an annual tax on carriages for the convey- 
ance of persons may be considered as within the power granted to 
Congress to lay duties. The term duty is the most comprehensive, 
next to the general term tax; and practically in Great Britain, 
whence we take our general ideas of taxes, duties, imposts, excises, 
customs, etc., embraces taxes on stamps, tolls for passage, etc., and 
is not confined to taxes on importation only. It seems to me, that 
a tax on expense is an indirect tax ; and I think, an annual tax on 
a carriage for the conveyance of persons, is of that kind; because 
a carriage is a consumable commodity; and such annual tax on it, 
is on the expense of the owner. I am inclined to think, but of this 
I do not give a judicial opinion, that the direct taxes contemplated 



Selected Cases in Constitutional Law. 71 

by the Constitution, are only two, to wit, a capitation or poll tax, 
simply, without regard to property, profession or any other cir- 
cumstance ; and a tax on land. I doubt, whether a tax, by a general 
assessment of personal property, within the United States, is in- 
cluded within the term direct tax. 

I am for affirming the judgment of the Circuit Court. 



POLLACK v. FARMERS' LOAN AND TRUST COMPANY. 

157 U. S., 429; AND 158 U. S., 60I. 1895. 

This suit was instituted by Pollack and other persons, stockhold- 
ers in the Farmers' Loan and Trust Company, to restrain the offi- 
cers and directors of the company from paying to the United 
States the taxes assessed upon the net profits of the comjpany and 
the incomes of all trust estates which the company held as trus- 
tee, exceeding $4000. The bill charged that the Act of Congress 
of August 15, 1894, relating, to the collection of an income tax 
was unconstitutional and void (1) because it was a direct tax on 
real estate by being imposed on the rents, issues and profits of real 
estate ; also that it was a direct tax on personal property and was 
not apportioned among the several States as required by the Con- 
stitution. (2) If not a direct tax, nevertheless it was unconstitu- 
tional since it was not uniform as required by the Constitution, as 
incomes under $4000 were exempted from taxation. The x\ct of 
Congress provided as follows : "There shall be assessed, levied, col- 
lected and paid annually upon the gains, profits and income receiv- 
ed in the preceding calendar year by every citizen of the United 
States, whether residing at home or abroad, and every person re- 
siding therein, whether said gains, profits, or income be derived 
from any kind of property, rents, interest, dividends or salaries, or 
from any profession, trade, employment or vocation carried on in 
the United States or elsewhere, or from any other source what- 
ever, a tax of two per centum on the amount so derived over and 
above four thousand dollars," etc. 

It was held that the statue was unconstitutional so far as it lev- 
ied a tax on the rents or income of real estate (157 U. S., 429). 
On other questions involved in the case the court was unable to 
decide because the judges were equally divided in opinion. A sec- 
ond hearing was granted by the court, (158 U. S., 601). 

The opinion was delivered by Chief Justice Fuller. 

****A S heretofore stated, the Constitution divided Federal tax- 
ation into two great classes, the class of direct taxes, and the class 
of duties, imposts, and excises ; and prescribed two rules which 
qualified the grant of power as to each class. 

The power to lav direct taxes apportioned among the several 
States in proportion to their representation in the popular branch 
of Congress, a representation based on population as ascertained 
by the census, was plenary and absolute; but to lay direct taxes 



72 Selected Cases in Constitutional Law. 

without apportionment was forbidden. The power to lay duties, 
imposts, and excises was subject to the qualification that the im- 
position must be uniform throughout the United States. 

Our previous decision was confined to the consideration of the 
validity of the tax on the income from real estate, and on the in- 
come from municipal bonds. The question thus limited was wheth- 
er such taxation was direct or not, in the meaning of the Consti- 
tution, and the court went no farther, as to the tax on the income 
from real estate, than to hold that it fell within the same class as 
the source whence the income was derived, that is, that a tax upon 
the realty and a. tax upon the receipts therefrom were alike direct ; 
while as to the income from municipal bonds, that could not be tax- 
ed because of want of power to tax the source, and no reference was 
made to the nature of the tax as being direct or indirect. 

We are now permitted to broaden the field of inquiry, and to 
determine to which of the two great classes a tax upon a person's 
entire income, whether derived from rents, or products, or other- 
wise, of real estate, or from bonds, stocks, or other forms of per- 
sonal property, belongs ; and we are unable to conclude that, the 
enforced substraction from the yield of all the owner's real or per- 
sonal property, in the manner prescribed, is so different from a 
tax upon the property itself, that it is not a direct, but an indirect 
tax, in th? meaning of the Constitution. * * * * 

We know of no reason for holding otherwise than that the words 
"direct taxes, " on the one hand, and "duties, imposts and excises," 
on the other, were used in the Constitution in their natural and 
obvious sense. Nor, in arriving at what those terms embrace, do 
we perceive any ground for enlarging them beyond, or narrowing 
them within, their natural and obvious import at the time the Con- 
stitution was framed and ratified. * * * * 

The reasons for the clauses of the Constitution in respect of di- 
rect taxation are not far to seek. The States, respectively, possess- 
ed plenary powers of taxation. They could tax the property of 
their citizens in such manner and to such extent as they saw fit ; 
they had unrestricted powers to impose duties or imposts on im- 
ports from abroad, and excises on manufactures, consumable com- 
modities, or otherwise. They gave up the great sources of revenue 
derived from commerce ; they retained the concurrent power of 
levying excises, and duties if covering anything other than excises ; 
but in respect of them the range of taxation was narrowed by the 
power granted over interstate commerce, and by the danger of be- 
ing put at disadvantage in dealing with excises on manufactures. 
They retained the power of direct taxation, and to that they look- 
ed as their chief resource ; but even in respect of that, they grant- 
ed the concurrent power, and if the tax were placed by both gov- 
ernments on the same subject, the claim of the United States had 
preference. Therefore, they did not grant the power of direct tax- 
ation without regard to their own condition and resources as States ; 
but they granted the power of apportioned direct taxation, a pow- 
er just as efficacious to serve the needs of the general government, 



Selected Cases in Constitutional Law. 73 

but securing to the States the opportunity to pay the amount ap- 
portioned, and to recoup from their own citizens in the most feasi- 
ble way, and in harmony with their systems of local self-govern- 
ment. If, in the changes of wealth and population in particular 
States, apportionment produced inequality, it was an inequality stip- 
ulated for, just as the equal representation of the States, however 
small, in the Senate, was stipulated for. The Constitution ordains 
affirmatively that each State shall have two members of that body, 
and negatively that no State shall by amendment be deprived of its 
equal suffrage in the Senate without its consent. The Constitution 
ordains affirmatively that representatives and direct taxes shall be 
apportioned among the several States according, to numbers, and 
negatively that no direct tax shall be laid unless in proportion to 
the enumeration. 

The founders anticipated that the expenditures of the States, 
their counties, cities, and towns, would chiefly be met by direct 
taxation on accumulated property, while they expected that those 
of the Federal government would be for the most part met by in- 
direct taxes. And in order that the power of direct taxation by the 
general government should not be exercised, except on necessity ; 
and, when the necessity arose, should be so exercised as to leave the 
States at liberty to discharge their respective obligations, and should 
not be so exercised, unfairly and discriminatingly, as to particular 
States or otherwise, by a mere majority vote, possibly of those 
whose constituents were intentionally not subjected to any part of 
the burden, the qualified grant was made. Those who made it knew 
that the power to tax involved the power to destroy 1 , and that, in 
the language of Chief Justice Marshall, in McCulloch v. Maryland, 
"the only security against the abuse of this power is found in the 
structure of the government itself. In imposing a tax, the legis- 
lature acts upon its constituents. This is, in general, a sufficient 
security against erroneous and oppressive taxation." 4 Wheat. 
428. And they retained this security by providing that direct tax- 
ation and representation in the lower house of Congress should be 
adjusted on the same measure. 

Moreover, whatever the reasons for the constitutional provisions, 
there they are, and they appear to us to speak in plain language. 

It is said that a tax on the whole income of property is not a 
direct tax in the meaning of the Constitution, but a duty, and, as 
a duty, leviable without apportionment, whether direct or indirect. 
We do not think so. Direct taxation was not restricted in one 
breath, and the restriction blow to the winds in another. * * * * 

The Constitution prohibits any direct tax, unless in proportion to 
numbers as ascertained by the census ; and, in the light of the cir- 
cumstances to which we have referred, it is not an evasion of that 
prohibition to hold that a general unapportioned tax, imposed upon 
all property owners as a body for or in respect of their property, 
is not direct, in the meaning of the Constitution, because confined to 
the income therefrom? 

Whatever the speculative views of political economists or revenue 



74 Selected Cases in Constitutional L 



aw. 



reformers may be, it can be properly held that the Constitution, 
taken in its plain and obvious sense, and with due regard to the 
circumstances attending the formation of the government, author- 
izes a general unapportioned tax on the products of the farm and 
the rents of real estate, although imposed merely because of owner- 
ship and with no possible means of escape from payment, as be- 
longing to a totally different class from that which includes the 
property from whence the income proceeds? 

There can be but one answer unless the constitutional restriction 
is to be treated as utterly illusory and futile, and the object of its 
framers defeated. We find it impossible to hold that a fundamental 
requisition, deemed so important as to be enforced by two provis- 
ions, one affirmative and one negative, can be refined away by 
forced distinctions between that which gives value to property, 
and the property itself. 

Nor can we perceive any ground why the same reasoning does 
not apply to capital in personalty held for the purpose of income or 
ordinarily yielding income, and to the income therefrom. All the 
real estate of the country, and all its invested personal property, and 
open to the direct operation of the taxing power if an apportion- 
ment be made according to the Constitution. The Constitution 
does not say that no direct tax shall be laid by apportionment or 
any other property than land ; on the contrary, it forbids all unap- 
portioned direct taxes ; and we know of no warrant for excepting 
personal property from the exercise of the power, or any reason 
why an apportioned direct tax cannot be laid and assessed, as Mr. 
Gallatin said in his report when Secretary of the Treasury in 1812, 
"upon the same objects of taxation on which the direct taxes levied 
under the authority of the State are laid and assessed." * * * * 

The stress of the argument is thrown, however, on the assertion 
that an income tax is not a property tax at all ; that it is not a real 
estate tax, or a crop tax, or a bond tax ; that it is ah assessment 
upon the taxpayer on account of his money-spending power as 
shown by his revenue for the year preceding the assessment ; that 
rents received, crops harvested, interest collected, have lost all con- 
nection with their origin, and although once not taxable have be- 
come transmuted in their new form into taxable subject-matter; in 
other words, that income is taxable irrespective of the source from 
whence it is derived. * * * 

We have considered the act only in respect of the tax on income 
derived from real estate, and from invested personal property, and 
have not commented on so much of it as bears on gains or profits 
from business, privileges, or employments, in view of the instances 
in which taxation on business, privileges, or employments has as- 
sumed the guise of an excise tax and been sustained as such. 

Being of opinion that so much of the sections of this law as lays 
a tax on income from real and personal property is invalid, we are 
brought to the question of the effect of that conclusion upon these 
sections as a whole. 

It is elementary that the same statute may be in part constitu- 



Selected Cases in Constitutional Law. 75 

tional and in part unconstitutional, and if the parts are wholly inde- 
pendent of each other, that which is constitutional may stand while 
that which is unconstitutional will be rejected. And in the case 
before us there is no question as to the validity of this act, except 
sections twenty-seven to thirty-seven, inclusive, which relate to the 
subject which has been under discussion ; and as to them we think 
the rule laid down by Chief Justice Shaw in Warren v. Charles- 
town, 2 Gray, 84, is applicable, that if the different parts "are so 
mutually connected with and dependent on each other, as conditions, 
considerations or compensations for each other, as to warrant a 
belief that the legislature intended them as a whole, and that, if all 
could not be carried into effect, the legislature would not pass the 
residue independently, and some parts are unconstitutional, all the 
provisions whicti are thus dependent conditional or connected, must 
fall with them." Or, as the point is put by Mr. Justice Matthews 
in Poindexter v. Greenhow, 114 U. S. 270, 304: "It is undoubtedly 
true that there may be cases where one part of a statute may be 
enforced as constitutional, and another be declared inoperative and 
void, because unconstitutional ; but these are cases where the parts 
are so distinctly separable that each can stand alone, and where the 
court is able to see, and to declare, that the intention of the legis- 
lature was that the part pronounced valid should be enforceable, 
even though the other part should fail. To hold otherwise would 
be to substitute, for the law intended by the legislature, one they 
may never have been willing by itself to enact." * * * * 

According to the census, the true valuation of real and personal 
property in the United States in 1890 was $65,037,091,197, of which 
real estate with improvements thereon made up $39,544,544,333. 
Of course, from the latter must be deducted, in applying these sec- 
tions, all unproductive property and all property whose net yield 
does not exceed four thousand dollars ; but, even with such deduc- 
tions, it is evident that the income from realty formed a vital part 
of the scheme for taxation embodied therein. If that be stricken 
out, and also the income from all invested personal property, bonds, 
stock, investments of all kinds, it is obvious that by far the largest 
part of the anticipated revenue would be eliminated, and this would 
leave the burden of the tax to be borne by professions, trades, em- 
ployments, or vocations ; and in that way what was intended as a 
tax on capital would remain in substance a tax on occupations and 
labor. We cannot believe that such was the intention of Congress. 
We do not mean to say that an act laying by apportionment a direct 
tax on all real estate and personal property, or the income thereof, 
might not also lay excise taxes on business, privileges, employments, 
and vocations. But this is not such an act ; and the scheme must 
be considered as a whole. Being invalid as to the greater part, and 
falling, as the tax would, if any part were held valid, in a direction 
which could not have been contemplated except in connection with 
the taxation considered as an entirety, we are constrained to con- 
clude that sections twenty-seven to thirty-seven, inclusive, of the 



76 Selected Cases in Constitutional Law. 

act, which became a law without the signature of the President on 
August 28, 1894, are wholly inoperative and void. 

Our conclusions may, therefore, be summed up as follows : 

First. We adhere to the opinion already announced, that, taxes 
on real estate being indisputably direct taxes, taxes on the rents or 
income of real estate are equally direct taxes. 

Second. We are of opinion that taxes on personal property, or 
on the income of personal property, are likewise direct taxes. 

Third. The tax imposed by sections twenty-seven to thirty- 
seven, inclusive, of the act of 1894, so far as it falls on the income 
of real estate and of personal property, being a direct tax within 
the meaning of the Constitution, and, therefore, unconstitutional 
and void because not apportioned according to representation, all 
those sections, constituting one entire scheme of taxation, are neces- 
sarily invalid 

The decrees hereinbefore entered in this court will be vacated; 
the decrees below will be reversed, and the cases remanded, 
with instructions to grant the relief prayed. 1 



KNOWLTON v. MOORE. 

178 U. S., 41. 1900. 

The Act of Congress of June 13th, 1898, known as the War 
Revenue Act, imposed a tax on all personal property passing by 
will or under the intestate laws of a State, to lineal or collateral 
heirs. The rate of the tax was graduated according to the amount 
of the legacy or interest and the relationship to the decedent of the 
party receiving the same. It was further provided that the tax 
should be imposed only upon legacies or interests exceeding the 
sum of ten thousand dollars. One Edwin Knowlton died in Brook- 
lyn, N. Y., in October, 1898, and his will was probated and the 
executors duly qualified. Moore, the Collector of Internal Reve- 
nue, demanded of the executors a full statement showing the 
amount of the personal estate of the deceased, and the legatees and 
distributees. The collector levied a tax on the legacies and dis- 
tributive shares, but in fixing the rate considered the whole of the 
personal estate of the deceased and not the amount coming to each 
individual legatee under the will. As the personal estate which the 
deceased (Knowlton) left amounted to over two and a half mil- 
lions of dollars and the rates under the statute were progressive 
from a low n?te on legacies amounting to $10,000, to a high rate 
on those exceeding $1,000,000, this decision greatly increased the 
aggregate amount of the taxation. The tax was assessed at $42,- 
084.67. The executors paid the tax under protest and sued in the 
Circuit Court to recover the amount paid on the grounds (1) That 
the act was unconstitutional; (2) That the rate of the tax was im- 
properly fixed by the assessor. The Circuit Court dismissed the 



Selected Cases in Constitutional Law. 77 

suit, whereupon the executors appealed the case to the United 
States Supreme Court. 

Mr. Justice White delivered the opinion of the court. 

The precise meaning of the law being thus determined (i. e., that 
the rate of the tax should be fixed by the amount of each legacy 
or share, and not by the amount of the entire personal estate) the 
question whether the tax which it imposes is direct, and hence sub- 
ject to the requirement of apportionment arises for consideration. 
That death duties, generally, have been from the beginning in all 
countries considered as different from taxes levied on property, 
real or personal, directly on account of the ownership and posses- 
sion thereof, is demonstrated by the review which we have pre- 
viously made. It has also been established by what we have 
heretofore said that such taxes, almost from the beginning of our 
national life, have been treated as duties, and not as direct taxes. 
Of course, they concern the passing of property by death, for if 
there was no property to transmit, there would be nothing upon 
which the tax levied on the occasion of death could be computed. 
This legislative and administrative view of such taxes has been 
directly upheld by this court. In Scholey vs. Rew, 23 Wall, 331, 
349, * * * the question presented was the constitutionality 
of the provisions of the Act of 1864, imposing a succession duty 
as to real estate. The assertion was that the duty was repugnant 
to the Constitution, because it was a direct tax and had not been 
apportioned. The tax was decided to be constitutional. The court 
said: "But it is clear that the tax or duty levied by the act under 
consideration is not a direct tax within the meaning of either of 
these provisions. Instead of that it is plainly an excise tax or duty, 
authorized by section eight of article one, which vests the power in 
Congress to lay and collect taxes, duties, imposts, and excises to 
pay the debts and provide for the common defence and general 
welfare. * * * Concluding, then, that the tax under consider- 
ation is not direct within the meaning of the Constitution, but, on 
the contrary, is a duty or excise, we are brought to consider the 
question of uniformity. The contention is that because the statute 
exempts legatees and distributive shares in personal property below 
ten thousand dollars, because it classifies the rate of tax according 
to the relationship or absence of the relationship of the taker to the 
deceased, and provides for a rate progressing by the amount of the 
legacy or share, therefore the tax is repugnant to that portion of 
the first clause of Section 8 of Article 1 of the Constitution, which 
provides, "the duties, imports and excises shall be uniform through- 
out the United States. (Mr. Justice White then discusses the 
debates in the Constitutional Convention with reference to the 
meaning given to the term "uniform" by the framers of the Con- 
stitution). "Thus it is apparent that the expression, 'uniform 
throughout the United States,' was at that time considered as pure- 
ly geographical, as being synonymous with the expression, "general 
operation throughout the United States,' and that no thought of 



78 Selected Cases in Constitutional Law. 

restricting Congress to intrinsic uniformity obtained, since the 
powers recommended were absolutely in conflict with such theory. 

Judgment reversed. 

Note. — See also Veazie Bank v. Fenno, page 57. 



SECTION II. 
POWER OF CONGRESS OVER COMMERCE. 

Sub-Section A. 

Extent of the Federal Power. 

1. In General. 

GIBBONS v. OGDEN. 

9 WH EATON, IOO. 1824. 

One Aaron Ogden filed a bill praying for an injunction in the 
Court of Chancery of New York against Thomas Gibbons. The 
bill set out the several acts of the legislature of that State which 
secured to Robert R. Livingston and Robert Fulton the exclusive 
navigation of all the waters within the jurisdiction of the State, 
with boats moved by steam or fire, for a certain term of years, 
which had not expired at the time the suit was brought. The 
statutes also authorized the court to award an injunction, restrain- 
ing any person whatever from navigating those waters with boats 
of that description. Living-ston and Fulton had assigned to one 
John R. Livingston, who in turn had assigned to ,the complainant, 
Ogden, the right to navigate the waters between Elizabethtown 
and other places in New Jersey and the City of New York. Gib- 
bons, the defendant, in violation of the exclusive privilege held by 
Ogden, was running two steam boats between New York and Eliz- 
abethtown. The injunction prayed for was granted, but Gibbons 
in his answer stated that his boats were duly enrolled and licensed 
to be employed in carrying on the coasting trade, under an Act 
of Congress of February 18th, 1793, and he insisted on his right by 
virtue of such licenses to navigate the waters between the two ports. 
An appeal from the order granting the injunction was taken to the 
highest court of New York State, which upheld the injunction, 
from which decree the cause was carried to the United States Su- 
preme Court. 

Chief Justice Marshall delivered the opinion of the court. 

The appellant contends that this decree is erroneous, because the 
laws which purport to give the exclusive privilege it 'sustains, are 
repugnant to the Constitution and laws of the Linked States. 



Selected Cases in Constitutional Law. 79 

They are said to be repugnant — 

i. To that clause in the Constitution which authorizes Congress 
to regulate commerce. 

2. ^ To that which authorizes Congress to promote the progress 
of science and useful arts. 

The State of New York maintains the constitutionality of these 
laws ; and their legislature, their council of revision, and their 
judges, have repeatedly concurred in this opinion. * * * * 

The words are: "Congress shall have power to regulate com- 
merce with foreign nations, and among the several States, and with 
the Indian tribes." 

The subject to be regulated is commerce; and our Constitution 
being, as was aptly said at the bar, one of enumeration, and not of 
definition, to ascertain the extent of the power, it becomes neces- 
sary to settle the meaning of the word. The counsel for the ap- 
pellee would limit it to traffic, to buying and selling, or the inter- 
change of commodities, and do not admit that it comprehends navi- 
gation. This would restrict a general term, applicable to many 
objects, to one of its significations. Commerce, undoubtedly, is 
traffic, but it is something more ; it is intercourse. It describes the 
commercial intercourse between nations, and parts of nations, in 
all its branches, and is regulated by prescribing rules for carrying 
on that intercourse. The mind can scarcely conceive a system for 
regulating commerce between nations, which shall exclude all laws 
concerning navigation, which shall be silent on the admission of the 
vessels of the one nation into the ports of the other, and be con- 
fined to prescribing- rules for the conduct of individuals, in the 
actual employment of buying and selling, or of barter. 

If commerce does not include navigation, the government of the 
Union has no direct power over that subject, and can make no law 
prescribing what shall constitute American vessels, or requiring that 
they shall be navigated by American seamen. Yet this power has 
been exercised from the commencement of the government, has 
been exercised with the consent of all, and has been understood by 
all to be a commercial regulation. All America understands, and 
has uniformly understood, the word ''commerce," to comprehend 
navigation. It was so understood, and must have been so under- 
stood, when the Constitution was framed. The power over com- 
merce, including navigation, was one of the primary objects for 
which the people of America adopted their government, and must, 
have been contemplated in forming it. The convention must have 
used the word in that sense, because all have understood it in that 
sense ; and the attempt to restrict it comes too late. 

If the opinion that "commerce," as the word is used in the Con- 
stitution, comprehends navigation also, requires any additional con- 
firmation, that additional confirmation is, we think, furnished by 
the words of the instrument itself * * * * 

The 9th section of the ist article declares that "no preference 
shall be given, by any regulation of commerce or revenue, to the 
ports of one State over those of another." This clause cannot be 



80 Selected Cases in Constitutional Law. 

understood as applicable to those laws only which are passed for 
the purposes of revenue, because it is expressly applied to com- 
mercial regulations ; and the most obvious preference which can 
be given to one port over another, in regulating 1 commerce, relates 
to navigation. But the subsequent part of the sentence is still more 
explicit. It is, "nor shall vessels bound to or from one State, be 
obliged to enter, clear, or pay duties, in another." These words 
have a direct reference to navigation. 

The universally acknowledged power of the government to im- 
pose embargoes, must also be considered as showing that all Amer- 
ica is united in that construction which comprehends navigation in 
the word commerce. * * * * 

The word used in Constitution, then, comprehends, and has been 
always understood to comprehend, navigation, within its meaning; 
and a power to regulate navigation is as expressly granted as if 
that term had been added to the word "commerce." 

To what commerce does this power extend? The Constitution 
informs us, to commerce "with foreign nations, and among the 
several States, and with the Indian tribes." 

It has, we believe, been universally admitted that these words 
comprehend every species of commercial intercourse between the 
United States and foreign nations. No sort of trade can be carried 
on between this country and any other, to which this power does 
not extend. It has been truly said that commerce, as the word is 
used in the Constitution, is a unit, every part of which is indicated 
by the term. 

If this be the admitted meaning of the word, in its application to 
foreign nations, it must carry the same meaning throughout the 
sentence, and remain a unit, unless there be some plain intelligible 
cause which alters it. 

The subject to which the power is next applied, is to commerce 
"among the several States." The word "among" means intermin- 
gled with. A thing which is among others, is intermingled with 
them. Commerce among the States, cannot stop at the external 
boundary line of each State, but may be introduced into the inte- 
rior. 

It is not intended to say that these words comprehend that com- 
merce which is completely internal, which is carried on between 
man and man in a State, or between different parts of the same 
State, and which does not extend to or affect other States. Such 
a power would be inconvenient, and is certainly unnecessary. 

Comprehensive as the word "among" is, it may very properly be 
restricted to that commerce which concerns more States than one. 
The phrase is not one which would probably have been selected to 
indicate the completely interior traffic of a State, because it is not 
an apt phrase for that purpose ; and the enumeration of the par- 
ticular classes of commerce to which the power was to be extended, 
would not have been made, had the intention been to extend the 
power to -every description. The enumeration presupposes some- 
thing not enumerated ; and that something, if we regard the Ian- 



Selected Cases in Constitutional Law. 81 

guage, or the subject of the sentence, must be the exclusively internal 
commerce of a State. The genius and character of the whole gov- 
ernment seem to be, that its action is to be applied to all the exter- 
nal concerns of the nation, and to those internal concerns which 
affect the States generally ; but not to those which are completely 
within a particular State, which do not affect other States, and with 
which it is not necessary to interfere, for the purpose of executing 
some of the general powers of the government. The completely 
internal commerce of a State, then, may be considered as reserved 
for the State itself. 

But, in regulating commerce with foreign nations, the power of 
Congress does not stop at the jurisdictional lines of the several 
States. It would be a very useless power, if it could not pass those 
lines. The commerce of the United States with foreign nations, is 
that of the whole United States. Every district has a right to par- 
ticipate in it The deep streams which penetrate our country in 
every direction, pass through the interior of almost every State in 
the Union, and furnish the means of exercising this right. If Con- 
gress has the power to regulate it, that power must be exercised 
whenever the subject exists. If it exists within the States, if a 
foreign voyage may commence or terminate at a port within a State, 
then the power of Congress may be exercised within a State. 

'This principle is, if possible, still more clear, when applied to 
commerce "among the several States." They either join each other, 
in which case they are separated by a mathematicl line, or they are 
remote from each other, in • which case other States lie between 
them. What is commerce "among'' them; and how is it to be con- 
ducted? Can a trading expedition between two adjoining States 
commence and terminate outside of each? And if the trading in- 
tercourse be between two States remote from each other, must it 
not commence in one, terminate in the other, and probably pass 
through a third? Commerce among the States, must, of necessity, 
be commerce with the States. In the regulation of trade with the 
Indian tribes, the action of the law, especially when the Constitution 
was made, was chiefly within a State. The power of Congress, 
then, whatever it may be, must be exercised within the territorial 
jurisdiction of the several States. The sense of the nation on this 
subject, is unequivocally manifested by the provisions made in the 
laws for transporting goods, by land, between Baltimore and Provi- 
dence, between New York and Philadelphia, and between Phila- 
delphia and Baltimore. 

We are now arrived at the inquiry — what is this power? 

It is the power to regulate ; that is, to prescribe the rule by which 
commerce is to be governed. This power, like all others vested in 
Congress, is complete in itself, may be exercised to its utmost ex- 
tent, and acknowledges no limitations other than are prescribed in 
the Constitution. These are expressed in plain terms, and do not 
affect the questions which arise in this case, or which have been 
discussed at the bar. If, as has always been understood, the sov- 
ereignty of Congress, though limited to specified objects, is plenary 



82 Selected Cases in Constitutional Law. 

as to those objects, the power over commerce with foreign nations, 
and among the several States, is vested in Congress as absolutely 
as it would be in a single government, having in its constitution 
the same restrictions on the exercise of the power as are found in 
the Constitution of the United States. The wisdom and the discre- 
tion of Congress, their identity with the people, and the influence 
which their constituents possess at elections, are, in this, as in many 
other instances, as that, for example, of declaring war, the sole re- 
straints on which they have relied, to secure them from its abuse. 
They are the restraints on which the people must often rely solely, 
in all representative governments. 

The power of Congress, then, comprehends navigation within the 
limits of every State in the Union, so far as that navigation may be, 
in any manner, connected with "commerce with foreign nations, or 
among the several States, or with the Indian tribes." It may, of 
consequence, pass the jurisdictional line of New York, and act upon 
the very waters to which the prohibition now under consideration 
applies. * * * * 

It has been contended, by the counsel for the appellant, that, as 
the word to "regulate" implies in its nature full power over the 
thing to be regulated, it excludes, necessarily, the action of all others 
that would perform the same operation on the same thing. That 
regulation is designed for the entire result, applying to those parts 
which remain as they were, as well as to those which are altered. 
It produces a uniform whole, which is as much distured and de- 
ranged by changing what the regulating power designs to leave un- 
touched, as that on which it has operated. 

There is great force in this argument, and the court is not satis- 
fied that it has been refuted. 

Since, however, in exercising the power of regulating their own 
purely internal affairs, whether of trading or police, the States may 
sometimes enact laws, the validity of which depends on their inter- 
fering with, and being contrary to, an act of Congress passed in 
pursuance of the Constitution, the court will enter upon the in- 
quiry, whether the laws of New York, as expounded by the highest 
tribunal of that State, have, in their application to this case, come 
into collision with an act of Congress, and deprived a citizen of a 
right to which that act entitles him. * * * 

It has been contended that, if a law passed by a State, in the 
exercise of its acknowledged sovereignty, comes into conflict with 
a law passed by Congress in pursuance of the Constitution, they 
affect the subject, and each other, like equal opposing powers. 

But the framers of our Constitution foresaw this state of things, 
and provided for it bv declaring the supremacy not only of itself, 
but of the laws made' in pursuance of it. The nullity of any act, 
inconsistent with the Constitution, is produced by the declaration 
that the Constitution is the supreme law. The appropriate appli- 
cation of that part of the clause which confers the same supremacy 
on laws and treaties, is to such acts of the State legislatures as do 
not transcend their powers, but, though enacted in the execution 



Selected Cases in Constitutional Law. 83 

of acknowledged State powers, interfere with, or are contrary to, 
the laws of Congress, made in pursuance of the Constitution, or 
some treaty made under the authority of the United States. In 
every such case the act of Congress, or the treaty, is supreme ; and 
the low of the State, though enacted in the exercise of powers not 
controverted, must yield to it. * * * * 

As this decides the cause, it is unnecessary to enter in an exami- 
nation of that part of the Constitution which empowers Congress 
to promote the progress of science and the useful arts. 

The court is aware that, in stating the train of reasoning by which 
we have been conducted to this result, much time has been con- 
sumed in the attempt to demonstrate propositions which may have 
been thought axioms. It is felt that the tediousness inseparable 
from the endeavor to prove that which is already clear, is imputa- 
ble to a considerable part of this opinion. But it was unavoidable. 
The conclusion to which we have come depends on a chain of prin- 
ciples which it was necessary to preserve unbroken ; and, although 
some of them were thought nearly self-evident, the magnitude of 
the question, the weight of character belonging to those from whose 
judgment we dissent, and the argument at the bar, demanded that 
we should assume nothing. 

Powerful and ingenious minds, taking as postulates that the 
powers expressly granted to the government of the Union are to be 
contracted by construction into the narrowest possible compass, and 
that the original powers of the States are retained, if any possible 
construction will retain them, may, by a course of well-digested 
but refined and metaphysical reasoning founded on these premises, 
explain away the Constitution of our country, and leave it a mag- 
nificent structure, indeed, to look at, but totally unfit for use. They 
may so entangle and perplex the understanding, as to obscure prin- 
ciples which were before thought quite plain, and induce doubts 
where, if the mind were to pursue its own course, none would be 
perceived. In such a case, it is peculiarly necessary to recur to 
safe and fundamental principles to sustain those principles, and, 
when sustained, to make them the test of the arguments to be ex- 
amined. Injunction was dissolved. 



PENSACOLA TELEGRAPH COMPANY v. WESTERN 
UNION TELEGRAPH COMPANY. 

96 U. S., 1. 1877. 

The Act of Congress of July 24, 1866, provided that telegraph 
companies might construct and operate telegraph lines over any 
portion of the public domain of the United States and over and 
under navigable streams of the United States. On December 11, 
1866, the plaintiff company was chartered by the Florida Legisla- 
ture and was given an exclusive privilege to establish and main- 
tain telegraph lines in certain counties of the State, connecting with 
lines from within or without the State. In 1874 the legislature 



84 Selected Cases in Constitutional Law. 

empowered a railroad company to construct a line of telegraph 
along its road and to sell its franchises to other telegraph com- 
panies. This grant embraced the territory of the exclusive grant 
given to the plaintiff by the State Act of December n, 1866. 'The 
defendant company, claiming under the railroad company began to 
string their wires in this exclusive territory, and the plaintiffs filed 
a bill in equity in the Circuit Court for the Northern District of 
Florida, to enjoin the erection of the defendant's line. The ques- 
tion was raised whether the act of the State, conferring the exclu- 
sive privilege on the plaintiff was constitutional. Defendant argued 
that it was repugnant to the Federal statute of July 24, 1866. 
The decree of the Circuit Court dismissed the plaintiff's bill, 
whereupon it appealed the case to the United States Supreme Court. 

Mr. Chief Justice Waite delivered the opinion of the court. 

Congress has power "to regulate commerce with foreign nations 
and among the several States" (Const. Art. 1, Sec. 8, par. 3) ; and 
"to establish post-offices and post-roads" (id., par. 7). The Con- 
stitution of the United States and the laws made in pursuance 
thereof are the supreme law of the land. Art. 6, par 2. A law of 
Congress made in pursuance of the Constitution suspends or over- 
rides all State statutes with which it is in conflict. 

Since the case of Gibbons v. Ogden, 9 Wheat. 1, it has never 
been doubted that commercial intercourse is an element of com- 
merce which comes within the regulating power of Congress. Post- 
offices and post-roads are established to facilitate the transmission 
of intelligence. Both commerce and the postal service are placed 
within the power of Congress, because, being national in their op- 
eration, they should be under the protecting care of the national 
government. 

The powers thus granted are not confined to the instrumentalities 
of commerce, or the postal service known or in use when the Con- 
stitution was adopted, but they keep pace with the progress of the 
country, and adapt themselves to the new developments of time 
and circumstances. They extend from the horse with its rider to 
the stage-coach, from the sailing vessel to the steamboat, from the 
coach and the steamboat to the railroad, and from the railroad to 
the telegraph, as these new agencies are successively brought into 
use to meet the demands of increasing population and wealth. They 
were intended for the government of the business to which they 
relate, at all times and under all circumstances. As they were in- 
trusted to the general government for the good of the nation, it is 
not only the right, but the duty of Congress to see to it that the 
intercourse among the States and the transmission of intelligence 
are not obstructed or necessarily encumbered by State legislation. 

The electric telegraph marks an epoch in the progress of time. 
In a little more than a quarter of a century it has changed the 
habits of business, and become one of the necessities of commerce. 
It is indispensable as a means of inter-communication, but especially 
is it so in commercial transactions. The statistics of the business 
before the recent reduction in rates show that more than eighty 



Selected Cases in Constitutional Law. 85 

per cent, of all the messages sent by telegraph related to commerce. 
Goods are sold and money paid upon telegraphic orders. Con- 
tracts are made by telegraphic correspondence, cargoes secured, 
and the movement of ships directed. The telegraphic announcement 
of the markets abroad regulates prices at home, and a prudent mer- 
chant rarely enter upon an important transaction without using 
the telegraph freely to secure information. 

It is not only important to the people, but to the government. By 
means of it the heads of the departments in Washington are kept 
in close communication with all the various agencies at home and 
abroad, and can know at almost any hour, by inquiry, what is 
transpiring anywhere that affects the interest they have in charge. 
Under such circumstances, it cannot for a moment be doubted that 
this powerful agency of commerce and inter-communication comes 
within the controlling power of Congress, certainly as against hos- 
tile State legislation. In fact, from the beginning, it seems to have 
been assumed that Congress might aid in developing the system ; 
for the first telegraph line of any considerable extent ever erected 
was built between Washington and Baltimore, only a little more 
than thirty years ago, with money appropriated by Congress for 
that purpose (5 Stat. 618) ; and large donations of land and money 
have since been made to aid in the construction of other lines (12 
id. 489, 772; 13 id. 365; 14 id. 292), It is not necessary now to 
inquire whether Congress may assume the telegraph as part of the 
postal service, and exclude all others from its use. The present 
case is satisfied, if we find that Congress has power, by appropriate 
legislation, to prevent the States from placing obstructions in the 
way of its usefulness. 

The government of the United States, within the scope of its 
powers, operates upon every foot of territory under its jurisdiction. 
It legislates for the whole nation, and is not embarrassed by State 
lines. Its peculiar duty is to protect one part of the country from 
encroachments by another upon the national rights which belong 
to all. 

The State of Florida has attempted to confer upon a single cor- 
poration the exclusive right of transmitting intelligence by tele- 
graph over a certain portion of its territory. This embraces the 
two westernmost counties of the State, and extends from Alabama 
to the Gulf. No telegraph line can cross the State from east to 
west, or from north to south, within these counties, except it passes 
over this territory. Within it is situated an important seaport, at 
which business centres, and with which those engaged in commer- 
cial pursuits have occasion more or less to communicate. The 
United States have there also the necessary machinery of the na- 
tional government. They have a navy-yard, forts, custom-houses, 
courts, post-offices, and the appropriate officers for the enforce- 
ment of the laws. The legislation of Florida, if sustained, excludes 
all commercial intercourse by telegraph between the citizens of the 
other States and those residing upon this territory, except by the 
employment of this corporation. The United States cannot com- 



86 Selected Cases in Constitutional Law. 

municate with their own officers by telegraph except in the same 
way. The State, therefore, clearly has attempted to regulate com- 
mercial intercourse between its citizens and those of other ^States, 
and to control the transmission of all telegraphic correspondence 
within it own jurisdiction. 

It is unnecessary to decide how far this might have been done if 
Congress had not acted upon the same subject, for it has acted. 
The statute of July 24, 1866, in effect, amounts to a prohibition of 
all State monopolies in this particular. It substantially declares, in 
the interest of commerce and the convenient transmission of intelli- 
gence from place to place by the government of the United States 
and its citizens, that the erection of telegraph lines shall, so far as 
state interference is concerned, be free to all who will submit to the 
conditions imposed by Congress, and that corporations organized 
under the laws of one State for constructing and operating tele- 
graph lines shall not be excluded by another from prosecuting their 
business within its jurisdiction, if they accept the terms proposed 
by the national government for this national privilege. To this ex- 
tent, certainly, the statute is a legitimate regulation of commercial 
intercourse among the States, and is appropriate legislation to carry 
into execution the powers of Congress over the postal service. It 
gives no foreign corporation the right to enter upon private prop- 
erty without the consent of the owner and erect the necessary struc- 
tures for its business ; but it does provide, that, whenever the con- 
sent of the owner is obtained, no State legislation shall prevent the 
occupation of post-roads for telegraph purposes by such corpora- 
tions as are willing to avail themselves of its privileges. * * * * 

The State law in question, so far as it confers exclusive rights 
upon the Pensacola Company, is certainly in conflict with this leg- 
islation of Congress. To that extent it is, therefore, inoperative 
as against a corporation of another State entitled to the privileges 
of the Act of Congress. Such being the case, the charter of the 
Pensacola Company does not exclude the Western Union Company 
from the occupancy of the right of way of the Pensacola and Louis- 
ville Railroad Company under the arrangement made for that pur- 
pose. Decree Aiirmed. 



PENNSYLVANIA v. THE WHEELING AND BELMONT 
BRIDGE COMPANY. 

18 Howard^ 421. 1855. 

The State of Virginia empowered the Wheeling, etc., Bridge 
Company to build a bridge across the Ohio River at a certain point. 
The bridge interfered with the passage of boats on the river. The 
State of Pennsylvania filed a bill to have the bridge removed as a 
public nuisance. The Supreme Court of the United States decreed 
that it should be removed. Pending the decree the bridge was de- 
stroyed by a storm. The bridge was rebuilt as it was originally in 



Selected Cases in Constitutional Law. 87 

spite of the court's decree. Since, however, the rendering of the 
above mentioned decree Congress passed an act authorizing the 
Bridge Company to have and maintain the bridge at the height to 
which it had been rebuilt. Pennsylvania moved for a writ of as- 
sistance to execute the original decree. The argument for Pennsyl- 
vania was that this Act of Congress was unconstitutional as inter- 
fering with navigation. This case was one of original jurisdiction 
in the Supreme Court. 

Mr. Justice Nelson delivered the opinion of the court. 

The defendants rely upon this act of Congress as furnishing au- 
thority for the continuance of the bridge as constructed, and as 
superseding the effect and operation of the decree of the court pre- 
viously rendered, declaring it an obstruction to the navigation. 

On the part of the plaintiff, it is insisted that the act is unconsti- 
tutional and void, which raises the principal question in the case. 

In order to a proper understanding of this question it is material 
to recur to the ground and principles upon which the majority of 
the court proceeded in rendering the decree now sought to be en- 
forced. 

The bridge had been constructed under an act of the legislature 
of the State of Virginia ; and it was admitted that act conferred full 
authority upon the defendants for the erection, subject only to the 
power of Congress in the regulation of commerce. It was claimed, 
however, that Congress had acted upon the subject and had regulat- 
ed the navigation of the Ohio River, and had thereby secured to 
the public, by virtue of its authority, the free and unobstructed use 
of the same ; and that the erection of the bridge, so far as it inter- 
fered with the enjoyment of this use, was inconsistent with and in 
violation of the acts of Congress, and destructive of the right de- 
rived under them ; and that, to the extent of this interference with 
the free navigation of the river, the act of the legislature of Vir- 
ginia afforded no authority or justification. It was in conflict with 
the acts of Congress, which were the paramount law. 

This being the view of the case taken by a majority of the court, 
they found no difficulty in arriving at the conclusion, that the ob- 
struction of the navigation of the river, by the bridge, was a viola- 
tion of the right secured to the public by the Constitution and laws 
of Congress, nor in applying the appropriate remedy in behalf of 
the plaintiff. The ground and principles upon which the court pro- 
ceeded will be found reported in 13 How. 518. 

Since, however, the rendition of this decree, the acts of Congress 
already referred to, have been passed, by which the bridge is made a 
post-road for the passage of the mails of the United States, and the 
defendants are authorized to have and maintain it at its present site 
and elevation, and requiring all persons navigating the river to reg- 
ulate such navigation so as not to interfere with it. 

So far, therefore, as this bridge created an obstruction to the free 
navigation of the river, in view of the previous acts of Congress, 
they are to bt regarded as modified by this subsequent legislation ; 
and, although it still may be an obstruction in fact, is not so in the 



88 Selected Cases in Constitutional Law. 

contemplation of law. We have already said, and the principle is 
undoubted, that the act of the legislature of Virginia conferred full 
authority to erect and maintain the bridge, subject to the exercise 
of the power of Congress to regulate the navigation of the river. 
That body having in the exercise of this power, regulated the navi- 
gation consistent with its preservation and continuation, the author- 
ity to maintain it would seem to be complete. That authority com- 
bines the concurrent powers of both governments, State and Fed- 
eral, which, if not sufficient, certainly none can be found in our 
system of government. * * * * 

Upon the whole, without pursuing the examination further, our 
conclusion is, that, so far as respects that portion of the decree 
which directs the alteration or abatement of the bridge, it cannot be 
carried into execution since the Act of Congress which regulates the 
navigation of the Ohio River, consistent with the existence and con- 
tinuance of the bridge ; and that this part of the motion in behalf of 
the plaintiff must be denied. But that, so far as respects that por- 
tion of the decree which directs the costs to be paid by the defend- 
ants, the motion must be granted. 



2. The Meaning of Commerce. 

McCREADY v . VIRGINIA. 

94 U. S., 391. 1876. 

One McCready, a citizen of Maryland, was convicted and fined 

$500 in the Circuit Court of Gloucester County, Va., for planting 

oysters in Ware River, a stream in which the tide ebbs anal flows. 

The convicition was under the provisions of a statute of Virginia, 

of April 18, 1874, which was as follows : 

"If anv person other than a citizen of this State shall take or 
catch oysters, or any shell fish in any manner, or plant oysters in 
the waters thereof, or in the Rivers Potomac or Pocomoke, he shall 
forfeit $500, and the vessel, tackle and appurtenances." 

It was contended that the statute was in violation of the clause 
of the Constitution giving Congress the power to regulate com- 
merce. The Supreme Court of the State sustained the lower court, 
whereupon an appeal was taken to the Supreme Court of the Unit- 
ed States. 

Mr. Chief Justice Waite delivered the opinion of the court. 
* * * * .Neither do we think this case is affected by the clause of 
the Constitution which refers power on Congress to regulate com- 
merce, Art. 1., Sec. 8. There is here no question of transportation 
or exchange of commodities, but only of cultivation and production. 
Commerce has nothing to do with land while producing, but only 
with the product after it has become the subject of trade. Vir- 
ginia, owning land under water adapted to the propagation and 
improvement of oysters, has seen fit to grant the exclusive use of 
it for that purpose to the citizens of the State. In this way, the 



Selected Cases in Constitutional Law. 89 

people of Virginia may be enabled to produce what the people of 
other States cannot ; but that is because they own property which 
the others do not. Their productions do not spring from commerce, 
but commerce to some extent from them. Judgment affirmed. 



UNITED STATES v. E. C. KNIGHT CO. 
156 U. S., 1. 1895. 

The American Sugar Refining Co., a New Jersey corporation, 
being in control of a large majority of the manufactories of refined 
sugar in the United States, acquired through the purchase of stock 
in four Philadelphia refineries, such disposition over those manu- 
factories throughout the United States as gave it a practical mon- 
opoly of the business. 

The United States filed a bill in equity in the Circuit Court of 
the United States for the Eastern District of Pennsylvania against 
the American Sugar Refining Company and four other corporations, 
among which was the E. C. Knight Company, charging that these cor- 
porations had violated the Act of Congress of July 2, 1890, (Sher- 
man Anti-Trust Act) entitled "An act to protect trade and com- 
merce against unlawful restraints and monopolies, "which provided, 
that every contract, combination in the form of trust, or otherwise, 
or conspiracy in restraint of trade and commerce among the sev- 
eral States is illegal, and that persons who shall monopolize or shall 
attempt to monopolize or combine or conspire with other persons to 
monopolize trade and commerce among the several States shall be 
guilty of a misdemeanor." ,It was prayed that the agreements be 
cancelled and declared void and that the defendants be enjoined 
from carrying them out and violating said act. The Circuit Court 
dismissed the bill, whereupon an appeal was taken to the Supreme 
Court. 

Mr. Chiee Justice Fuller delivered the opinion of the court. 

By the purchase of the stock of the four Philadelphia refineries, 
with shares of its own stock, the American Sugar Refining Com- 
pany acquired nearly complete control of the manufacture of re- 
fined sugar within the United States. The bill charged that the 
contracts under which these purchases were made constituted com- 
binations in restrain of trade, and that in entering into them the 
defendants combined and conspired to restrain the trade and com- 
merce in refined sugar among the several States and with foreign 
nations, contrary to the act of Congress of July 2, 1890. 

The relief sought was the cancellation of the agreements under 
which the stock was transferred ; the redelivery of the stock to the 
parties respectively ; and an injunction against the further perform- 
ance of the agreements and further violations of the act. As usual, 
there was a prayer for general relief, but only such relief could be 
affored under that prayer as would be agreeable to the case made 
by the bill and consistent with that specifically prayed. And as to 



90 Selected Cases in Constitutional Law. 

the injunction asked, that relief was ancillary to and in aid of the 
primary equity, or ground of suit, and, if that failed, would fall 
with it. That ground here was the existence of contracts to mon- 
opolize interstate or international trade or commerce, and to re- 
strain such trade or commerce, which, by the provisions of the act, 
could be rescinded, or operations thereunder arrested. * * * * 

The fundamental question is, whether conceding that the exist- 
ence of a monopoly in manufacture is established by the evidence, 
that monopoly can be directly suppressed under the act of Con- 
gress in the mode attempted by this bill. * * * * 

The argument is that the power to control the manufacture of 
refined sugar is a monopoly over a necessary of life, to the enjoy- 
ment of which by a large part of the population of the United 
States interstate commerce is indispensable, and that, therefore, the 
general government in the exercise of the power to regulate com- 
merce may repress such monopoly directly and set aside the instru- 
ments which have created it. But this argument cannot be con- 
fined to necessaries of life merely, and must include all articles of 
general consumption. Doubtless the power to control the manu- 
facture of a given thing involves in a certain sense the control of 
its disposition, but this is a secondary and not the primary sfcnse; 
and although the exercise of that power may result in bringing the 
operation of commerce into play, it does not control it, and effects 
it only incidentally and indirectly. Commerce succeeds to manu- 
facture, and is not a part of it. The power to regulate commerce 
is the power to prescribe the rule by which commerce shall be gov- 
erned, and is a power independent of the power to suppress mon- 
opoly. But it may operate in repression of monopoly whenever that 
comes within the rules by which commerce is governed or when- 
ever the transaction is itself a monopoly of commerce. * * * * 

It will be perceived how far-reaching the proposition is that the 
power of dealing with a monopoly directly may be exercised by the 
general government whenever interstate or international commerce 
may be ultimately affected. The regulation of commerce applies to 
the subjects of commerce and not to matters of internal police. 
Contracts to buy, sell, or exchange goods to be transported among 
the several States, the transportation and its instrumentalities, and 
articles bought, sold or exchanged for the purposes of such transit 
among the States, or put in the way of transit, may be regulated, 
but this is because they form part of interstate trade or commerce. 
The fact that an article is manufactured for export to another State 
does not of itself make it an article of interstate commerce, and the 
intent of the manufacturer does not determine the time when the 
article or product passes from the control of the State and belongs 
to commerce. This was so ruled in Coe v. Errol, 116 U. S., 517, 

525- * * * * 

In Kidd v. Pearson, 128 U. S., 1, 20, 21, 24, where the ques- 
tion was discussed whether the right of a State to enact a statute 
prohibiting within its limits the manufacture of intoxicating liq- 
ors, except for certain purposes, could be overthrown by the fact 



Selected Cases in Constitutional Law. 91 

that the manufacturer intended to export the liquors when made, 
it was held that the intent of the manufacturer did not determine 
the time when the article or product passed from the control of 
the State and belonged to commerce, and that, therefore, the stat- 
ute, in omitting to except from its operation the manufacture of 
intoxicating liquors within the limits of the State for export, did 
not constitute an unauthorized interference with the right of Con- 
gress to regulate commerce. And Mr. Justice Lamar remarked: 
"No distinction is more popular to the common mind, or more 
clearly expressed in economic and political literature, than that be- 
tween manufacture and commerce. Manufacture is transformation 
— the fashioning of raw materials into a change of form for use. 
The functions of commerce are different. The buying and selling 
and the transportation incidental thereto constitute commerce ; and 
the regulation of commerce in the constitutional sense embraces the 
regulation at least of such transportation. * * * * -If it be held that 
the term includes the regulation of all such manufactures as are 
intended to be the subject of commercial transactions in the future, 
it is impossible to deny that it would also include all productive 
industries that contemplate the same thing. The result would be 
that Congress would be invested, to the exclusion of the States, 
with the power to regulate, not only manufactures, but also agri- 
culture, horticulture, stock raising, domestic fisheries, mining — in 
short, every branch of human industry. For is there one of them 
that does not contemplate, more or less clearly, an interstate or for- 
eign market? Does not the wheat grower of the Northwest or 
the cotton planter of the South, plant, cultivate, and harvest his 
crop with an eye on the prices at Liverpool, New York, and Chi- 
cago? The power being vested in Congress and denied to the 
States, it would follow as an inevitable result that the duty would 
devolve on Congress to regulate all of these delicate, multiform and 
vital interests — interests which in their nature are and must Be lo- 
cal in all the details of their successful management. * * * * The de- 
mands of such a supervision would require, not uniform legisla- 
tion generally applicable throughout the United States, but a swarm 
of statutes only locally applicable and utterly inconsistent. Any 
movement toward the establishment of rules of production in this 
vast country, with its many different climates and opportunities, 
could only be at the sacrifice of the peculiar advantages of a large 
part of the localities in it, if not of every one of them. On the 
other hand, any movement toward the local, detailed and incon- 
gruous legislation required by such interpretation would be about 
the widest possible departure from the declared object of the clause 
in question. Nor this alone. Even in the exercise of the power 
contended for, Congress would be confined to the regulation, not 
of certain branches of industry, however numerous, but to those 
instances in each and every branch where the producer contem- 
plated an interstate market. These instances would be almost in- 
finite, as we have seen ; but still there would always remain the 
possibility, and often it would be the case, that the producer con- 



92 Selected Cases in Constitutional Law. 

templated a domestic market. In that case the supervisory power 
must be executed by the State ; and the interminable trouble would 
be presented, that whether the one power or the other should ex- 
ercise the authority in question would be determined, not by any 
general or intelligible rule, but by the secret and changeable inten- 
tion of the producer in each and every act of production. A situa- 
tion more paralyzing to the State governments, and more provo- 
cative of conflicts between the general government and the States, 
and less likely to have been what the framers of the Constitution 
intended, it would be difficult to imagine." And see Veazie v. 
Moor, 14 How. 568, 574. * * * * 

Contracts, combinations, or conspiracies to control domestic en- 
terprise in manufacture, agriculture, mining, production in all its 
forms, or to raise or lower prices or wages, might unquestionably 
tend to restrain external as well as domestic trade, but the restraint 
would be an indirect result, however, inevitable and whatever its 
extent, and such result would not necessarily determine the object 
of the contract, combination, or conspiracy. 

Again, all the authorities agree that in order to vitiate a contract 
or combination it is not essential that its result should be a complete 
monopoly ; it is sufficient if it really tends to that end and to deprive 
the public of the advantages which flow from free competition. 
Slight reflection will show that if the national power extends to all 
contracts and combinations in manufacture, agriculture, mining, and 
other productive industries, whose ultimate result may affect exter- 
nal commerce, comparatively little of business operations and af- 
fairs would be left for State control. 

It was in the light of well-settled principles that the act of July 
2, 1890, was framed. Congress did not attempt thereby to assert 
the power to deal with monopoly directly as such; or to limit and 
restrict the rights of corporations created by the States or the citi- 
zens of the States in the acquisition, control, or disposition of prop- 
erty ; or to regulate or prescribe the price or prices at which such 
property or the products thereof should be sold ; or to make crim- 
inal the acts of persons in the acquisition and control of property 
which the States of their residence or creation sanctioned or per- 
mitted. Aside from the provisions applicable where Congress 
might exercise municipal power, what the law struck at was com- 
binations, contracts, and conspiracies to monopolize trade and com- 
merce among the several States or with foreign nations; but the 
contracts and acts of the defendants related exclusively to the ac- 
quisition of the Philadelphia refineries and the business of sugar 
refining in Pennsylvania, and bore no direct relation to commerce 
between the States or with foreign nations. The object was man- 
ifestly private gain in the manufacture of the commodity, but not 
through the control of interstate or foreign commerce. It is true 
that the bill alleged that the products of these refineries were sold 
and distributed among the several States, and that all the compa- 
nies were engaged in trade or commerce with the several States 
and with foreign nations; but this was no more than to say that 



Selected Cases in Constitutional Law. 93 

trade and commerce served manufacture to fulfil its function. Su- 
gar was refined for sale, and sales were probably made at Phila- 
delphia for consumption, and undoubtedly for resale by the first 
purchasers throughout Pennsylvania and other States, and refined 
sugar was alsc forwarded by the companies to other States for sale. 
Nevertheless it does not follow that an attempt to monopolize, or 
the actual monopoly of, the manufacture was an attempt, whether 
executory or consummated, to monopolize commerce, even though, 
in order to dispose of the product, the instrumentality of commerce 
was necessarily invoked. There was nothing in the proofs to in- 
dictate any intention to put a restraint upon trade or commerce, and 
the fact, as we have seen, that trade or commerce might be indi- 
rectly affected was not enough to entitle complainants to a decree. 
The subject-matter of the sale was shares of manufacturing stock, 
and the relief sought was the surrender of property which had al- 
ready passed and the suppression of the alleged monopoly in man- 
ufacture by the restoration of the status quo before the transfers ; 
yet the act of Congress only authorized the Circuit Courts to pro- 
ceed' by way of preventing and restraining violations of the act in 
respect of contracts, combinations, or conspiracies in restrain of 
interstate or international trade or commerce. 

The Circuit Court declined, upon the pleadings and proofs, to 
grant the relief prayed, and dismissed the bill, and we are of opin- 
ion that the Circuit Court of Appeals did not err in affirming that 
decree. Decree affirmed. 



NORTHERN SECURITIES COMPANY v. UNITED STATES 
193 U. S., 197. 1903. 

Suit was brought by the United States against the Northern Se- 
curities Company, a corporation of New Jersey ; the Great North- 
ern Railway Company, a corporation of Minnesota; the Northern 
Pacific Railway Company, a corporation of Wisconsin, and other 
co-defendants. The object of the proceeding was to enforce against 
the defendants the provisions of the act of July 2, 1890, known as 
the "Anti-Trust Act." 

The stockholders of the Great Northern and Northern Pacific 
Railway Companies, corporations with competing and practically 
parallel railway lines extending from the Great Lakes to Puget 
Sound, had organized the Northern Securities Company, as a hold- 
ing company for the shares of stock of the two competing com- 
panies. The plan of combination was to transfer to the Securities 
Company the shares of stock of the constitutent companies, and the 
stockholders of each company were to receive in return upon an 
agreed basis of value shares of the holding company. In this way, 
the Northern Securities Company became the holder and custodian 
of more than nine-tenths of Northern Pacific Company stock, and 
three-fourths of Great Northern Company stock. 

The United States charged that the combination was in violation 



94 Selected Cases in Constitutional Law. 

of the Anti-Trust law, in that it prevented free competition among 
carriers engaged in interstate commerce, and that it was a con- 
spiracy to monopolize trade and commerce among the several 
States. 

The United States Circuit Court in Minnesota sustained the con- 
tention of the government. An appeal was then taken to the Su- 
preme Court of the United States. 

Mr. Justice Harlan delivered the opinion of the court: — 
Necessarily by this combination or arrangement the holding com- 
pany in the fullest sense dominates the situation in the interest of 
those who were stockholders of the constitutent companies ; so much 
so, for every practical purpose, as if it had been itself a railroad 
corporation which had built, owned and operated both lines for the 
exclusive benefit of its stockholders. Necessarily, also, the con- 
stituent companies ceased, under such a combination, to be in ac- 
tive competition for trade and commerce along their respec- 
tive lines, and have become, practically, one powerful consolidated 
corporation, by the name of a holding corporation, the principal, 
if not the sole, object for the formation of which. was to carry out 
the purpose of the original combination under which the competi- 
tion between the constituent companies would cease. * * * No 
scheme or device could more certainly come within the words of 
the act — ''combination in the form of a trust or otherwise. * * * in 
restraint of commerce among the several States or with foreign 
nations," — or could more effectively and certainly suppress free 
competition between the constitutent companies. This combination 
is, within the meaning of the act, a "trust ;" but if not, it is a com- 
bination in restraint of interstate and international commerce, and 
that is enough to bring it under the condemnation of the act. The 
mere existence of such a combination and the power acquired by 
the holding company as its trustee, constitute a menace to, and a 
restraint upon, that freedom of commerce which Congress intended 
to recognize and protect, and which the public is entitled to have 
protected. If such a combination be not destroyed, all the advan- 
tages that would naturally come to the public under the operation 
of the general laws of competition, as between the Great Northern 
and Northern Pacific Railway Companies, will be lost, and the en- 
tire commerce of the immense territory in the northern part of the 
United States between the Great Lakes and the Pacific at Puget 
Sound will be at the mercy of a single holding corporation, organ- 
ized in a State distant from the people of that territory. * * * * 

Judgment of lower court is affirmed. 



PAUL v. VIRGINIA. 

8 Wallace, 168. 1868. 

A statute of Virginia enacted that insurance companies of other 
States, must before issuing policies in Virginia, take out a license 



Selected Cases in Constitutional Law. 95 

and deposit with the State Treasurer bonds to a large amount. 
Paul, the agent of several New York companies, was convicted of 
writing insurance without having complied with this statute. He 
appealed from decision of the highest State court sustaining his con- 
vicition to the Supreme Court of the United States. 

Paul claimed among other things that the Virginia statute, so 
far as his transactions were concerned, was void as a regulation of 
interstate commerce. 

Mr. Justice Field delivered the opinion of the court. 

"It is undoubtedly true . . . that the power conferred upon Con- 
gress to regulate commerce, includes as well commerce carried on 
by corporations as commerce carried on by individuals. 

There is, therefore, nothing in the fact that the insurance com- 
panies of New York are corporations, to impair the force of the 
argument of counsel. The defect of the argument lies in the char- 
acter of their business. Issuing a policy of insurance is not a trans- 
action of commerce. The policies are simple contracts of indem- 
nity against loss by fire, entered into between the corporations and 
the assured, for a consideration paid by the latter. These con- 
tracts are not articles of commerce in any proper meaning of the 
word. They are not subjects of trade and barter offered in the 
market as something having an existence and value independent of 
the parties to them. They are not commodities to be shipped or 
forwarded from one State to another, and then put up for sale. 
They are like personal contracts between parties which are com- 
pleted by their signature and the transfer of consideration: Such 
contracts are not interstate transactions, though the parties may be 
domiciled in different States. The policies do not take effect — 
are not executed contracts — until delivered by the agent in Vir- 
ginia. They are, then, local transactions, and are governed by the 
local law. They do not constitute a part of the commerce between 
States any more than a contract for the purchase and sale of goods 
in Virginia by a citizen of New York whilst in Virginia would 
constitute a portion of such commerce. * * * * 

We perceive nothing in the statute of Virginia which conflicts 
with the Constitution of the United States ; and the judgment of 
the Supreme Court of Appeals of that State must, therefore, be 

A f -firmed. 



CHAMPION v. AMES. 

188 U. S., 321. 1902. 

The Act of Congress of March 2, 1895, prohibited the carriage of 
lottery tickets in the United States mails or in interstate commerce, 
and made it an punishable offense to introduce such tickets in the 
mails or in interstate commerce. Champion violated the act by de- 
positing a box containing two lottery tickets with the Wells-Far- 
go Express Co., to be carried from Dallas, Texas, to Fresno, Cali- 



96 Selected Cases in Constitutional Law. 

fornia, for which offense he was indicted under the act. There- 
upon he sued out a writ of habeas corpus in the Circuit Court for 
the Northern District of Illinois, upon the theory that the act of 
1895, under which it was proposed to try him was void, under the 
Constitution of the United States, as it concerned a matter over 
which Congress had no authority. The Circuit Court denied him 
the writ of habeas corpus, whereupon he appealed the case to the 
Supreme Court of the United States. 

Mr. Justice Harlan delivered the opinion of the majority of 
the court. 

"It was said in argument that lottery tickets are not of any real 
or substantial value in themselves, and therefore are not subjects 
of commerce. If that were conceded to be the only legal test as to 
what are to be deemed subjects of commerce that may be regulated 
by Congress, we cannot accept as accurate the broad statement that 
such tickets are of no value. Upon their face they showed that 
the lottery company offered a large capital prize, to be paid to the 
holder of the ticket winning trie prize at the drawing advertised to 
be held at Asunion, Paraguay. Money was placed on deposit in 
different banks in the United States to be applied by the agents 
representing the lottery company to the prompt payment of prizes. 
These tickets were the subject of traffic; they could have been sold; 
and the holder was assured that the comany would pay to him the 
amount of the prize drawn. That the holder might not have been 
able to enforce his claim in the courts of any country making the 
drawing of lotteries illegal, and forbidding the circulation of lot- 
tery tickets, did not change the fact that the tickets issued by the 
foreign country represented so much money payable to the per- 
son holding them and who might draw the prizes affixed to them. 
Even if the holder did not draw a prize, the tickets, before the 
drawing, had a money value in the market among those who chose 
to sell or buy lottery tickets. * * * * We are of the opinion that lot- 
tery tickets are subjects of traffic and therefore are subjects of 
commerce, and the regulation of the carriage of such tickets from 
State to State, at least by independent carriers, is a regulation of 
commerce among the several States. * * * * That under its power to 
regulate commerce among the several States Congress — subject to 
the limitation? imposed by the Constitution on the exercise of the 
powers granted — has plenary authority over such commerce, and 
may prohibit the carriage of such tickets from State to State ; and 
that legislation to that end, and of that character is not consistent 
with any limitation or restriction imposed upon the exercise of the 
powers granted to Congress. 

The judgment of Circuit Court quashing the writ of # habeas 
corpus must be, Affirmed. 



Selected Cases in Constitutional Law. 97 

3. When Commerce is Interstate or Foreign. 

COE v. ERROL. 

116 U. S., 517. 1885. 

Coe was the owner of certain logs which had been cut in New 
Hampshire and were deposited on the banks of the Androscoggin 
River in the town of Errol, N. H., to be floated down stream into 
Maine when a convenient opportunity should arrive. The Andros- 
coggin River starts in Maine, but, after running a distance through 
that State, crosses the line and runs a distance through the State 
of New Hampshire, and then back into the State of Maine. Coe 
owned certain other logs which had been cut in Maine and were 
being floated down this stream in New Hampshire to Lewiston, 
Maine, but were detained on account of low water at Errol. The 
town officials of Errol assessed a certain tax on all these logs while 
they thus remained in the town. Coe filed a petition in the State 
court to have the tax abated. The State court abated the tax as 
far as it affected the logs which had floated down the stream from 
Maine and were on their way to Lewiston. Coe appealed the case 
to the United States Supreme Court on the ground that the tax 
was an interference with interstate commerce. 

Mr. Justice Bradley delivered the opinion of the court. 

"Are the products of a State though intended for exportation to 
another State, and partially prepared for that purpose by being de- 
posited at a place or port of shipment within the State, liable to be 
taxed like other property within the State? 

Do the owner's state of mind in relation to the goods, that is, his 
intent to export them, and his partial preparation to do so, exempt 
them from taxation. This is the precise question for solution. 

This question does not present the predicament of goods in course 
of transportation through a State, though detained for a time by 
low water or other causes of delay, as was the case with the logs 
cut in the State of Maine, the tax on which was abated by the Su- 
preme Court of New Hampshire. Such goods are already in the 
course of commercial transportation, and are clearly under the pro- 
tection of the Constitution. And so, we think, would the goods 
in question be when actually started in the course of transportation 
to another State, or delivered to a carrier for such transportation. 
There must be a point of time when they cease to be governed ex- 
clusively by the domestic law and begin to be governed and pro- 
tected by the national law of commercial regulation, and that mo- 
ment seems to us to be a legitimate one for this purpose, in which 
they commence their final movement for transportation from the 
State of their origin to that of their destination. When the prod- 
ucts of the farm or the forest are collected and brought in from 
the surrounding country to a town or station serving as an entre- 
pot for that particular region, whether on a river or a line of rail- 
road, such products are not yet exports, nor are they in process of 
exportation, nor is exportation begun until they are committed to 



08 Selected Cases in Constitutional Law. 

the common carrier for transportation out of the State to the State 
of their destination, or have started on their ultimate passage to 
that State. Until then it is reasonable to regard them as not only 
within the State of their origin, subject to its jurisdiction, and lia- 
ble to taxation there, if not taxed by reason of their being intend- 
ed for exportation, but taxed without discrimination, in the usual 
way and manner in which such property is taxed in the State. 

The application of these principles to the present case is obvi- 
ous. The logs which were taxed, and the tax on which was not 
abated by the Supreme Court of New Hampshire, had not, when 
so taxed, been shipped or started on their final voyage or journey 
to the State of Maine. They had only been drawn down from 
Wentworth's location to Errol, the place from which they were to 
be transported to Lewiston in the State of Maine. There they 
were to remain until it should be convenient to send them to their 
destination. They come precisely within the character of proper- 
ty which, according to the principles herein laid down, is taxable. 

The judgment of the Supreme Court of New Hampshire is 

Affirmed. 



BROWN v. HOUSTON. 

114 U. S., 622. 1885. 

The plaintiffs, citizens and residents of Pennsylvania, shipped 
coal in barges from Pittsburg to New Orleans. The coal remain- 
ed in the barges on the Mississippi for some time after its arrival 
in New Orleans. A statute of Louisiana passed in 1880, provided 
that a certain tax should be levied on all property within the State. 
Under this act the State officers attempted to collect a tax on the 
plaintiffs' coal while yet it lay unsold in the barges. The plaintiffs 
sought by injunction to restrain the enforcement of the tax on the 
ground that their coal still retained its character of interstate com- 
merce and therefore could not be taxed by the State. The judg- 
ment of the Supreme Court of Louisiana was in favor of the 
State's right to tax these goods. The plaintiffs then appealed the 
case to the Supreme Court of the Linked States. 

Mr. Justice Bradley delivered the opinion of the court. 

In aproaching the consideration of the case we will first take up 
the last objection raised by the plaintiff in error, namely, that the 
tax was a duty on imports and exports. 

It was decided by this court in the case of Woodruff v. Parham, 
8 Wall. 123, that the term "imports," as used in that clause of the 
Constitution which declares that "no State shall, without the con- 
sent of Congress, lay any imposts or duties on imports or exports," 
does not refer to articles carried from one State into another, but 
only to articles imported from foreign countries into the United 
States. " In that case the City of Mobile had by ordinance, passed in 



Selected Cases in Constitutional Law. 99 

pursuance of its charter, authorized the collection of a tax on real 
and personal estate, sales at auction, and sales of merchandise, cap- 
ital employed in business and income within the city. Woodruff 
and others were auctioneers, and were taxed under this ordinance 
for sales at auction made by them, including sales of gt>ods, the 
product of other States than Alabama, received by them as con- 
signees and agents, and sold in the original and unbroken packages ; 
but as the ordinance made no discrimination between sales at auc- 
tion of goods produced in Alabama and goods produced in other 
States, the court held that the tax was not unconstitutional. A 
contrary result must have been reached under the ruling in Brown 
v. Maryland, 12 Wheat. 419, 449, if the constitutional prohibition 
referred to had been held to include imports from other States as 
well as imports from foreign countries ; for, at the time the tax was 
laid, the condition of the goods, in reference to their introduction 
into the State, was precisely the same in one case as in the other. 
This court, however, after an elaborate examination of the ques- 
tion, held that the terms "imports" and "exports" in the clause un- 
der consideration had reference to goods brought from or carried 
to foreign countries alone, and not to goods transported from one 
State to another. 

The other assumption made under that assignment, that some of 
the coal was afterwards exported, and that the tax complained of 
was therefore pro tanto a duty on exports, is equally untenable. 
When the petition was filed) the coal was lying* in New Orleans, in 
the hands of Brown & Jones, for sale. The petition states this in 
so many words, and Rootes testifies the same thing, and adds that 
it was to be sold by the flat-boat load. He also adds that 
at the time of his examination more than half of it had been export- 
ed to foreign countries ; but he probably means that it had been 
sold to steamers sailing to foreign ports for use on the same, and 
had only been exported in that way. The complainants were not 
exporters ; they did not hold the coal at New Orleans for expor- 
tation, but for sale there. Being in New Orleans, and held there 
on sale, without reference to the destination or use which the pur- 
chasers might wish to make of it, it was taxed in the hands of the 
owners (or their agents) like all other property in the city, six 
mills on the dollar. If after this, and after being sold, the pur- 
chaser thought proper to put it on board of a steamer bound to 
foreign parts, that did not alter the character of the taxation so as 
to convert it from a general tax to a duty on exports. When tax- 
ed it was not held with the intent or for the purpose of exportation, 
but with the intent and for the purpose of sale there, in New Or- 
leans. A duty on exports must either be a duty levied on goods as 
a condition, or by reason of their exportation, or, at least, a direct 
tax or duty on goods which are intended for exportation. Wheth- 
er the last would be a duty on exports, it is not necessary to de- 
termine. But certainly, where a general tax is laid on all property 
alike, it cannot be construed as a duty on exports when falling upon 
goods not then intended for exportation, though they should hap- 



100 Selected Cases in Constitutional Law. 

pen to be exported afterwards. This is the most that can be said 
of the goods in question, and we are therefore of opinion that the 
tax was not a duty on exports any more than it was a duty on im- 
ports, within the meaning of those terms in the clause under con- 
sideration. 

But in holding, with the decision in Woodruff v. Parham, that 
goods carried from one State to another are not imports or exports 
within the meaning of the clause which prohibits a State from lay- 
iny any impost or duty on imports or exports, we do not mean to 
be understood as holding that a State may levy import or export 
duties on goods imported from or exported to another State. We 
only mean to say that the clause in question does not prohibit it. 
Whether the laying of such duties by a State would not violate 
some other provision of the Constitution, that, for example, which 
gives to Congress the power to regulate commerce with foreign 
nations, among the several States and with the Indian tribes, is a 
different question. This brings us to the consideration of the sec- 
ond assignment of error, which is founded on the clause referred 
to. 

The power to regulate commerce among the several States is 
granted to Congress in terms as absolute as is the power to regulate 
commerce with foreign nations. If not in all respects an exclusive 
power; if, in the absence of Congressional action, the States may 
continue to regulate matters of local interest only incidentally affect- 
ing foreign and interstate commerce, such as pilots, wharves, har- 
bors, roads, bridges, tolls, freights, etc., still, according to the rule 
laid down in Cooley v. Board of Wardens of Philadelphia, 12 How. 
299, 319, the power of Congress is exclusive wherever the matter is 
national in its character or admits of one uniform system or plan 
of regulation ; and is certainly so far exclusive that no State has 
power to make any law or regulation which will affect the free and 
unrestrained intercourse and trade between the States, as Congress 
has left it, or which will impose any discriminating burden or tax 
upon the citizens or products of other States, coming or brought 
within its jurisidiction. All laws and regulations are restrictive of 
natural freedom to some extent, and where no regulation is impos- 
ed by the government which has the exclusive power to regulate, 
it is an indication of its will that the matter shall be left free. So 
long as Congress does not pass any law to regulate commerce 
among the several States, it thereby indicates its will that com- 
merce shall be free and untrammelled ; and any regulation of the 
subject by the States is repugnant to such freedom. * * * * In short, 
it may be laid down as the settled doctrine of this court, at this day, 
that a State can no more regulate or impede commerce among the 
several States than it can regulate or impede commerce with for- 
eign nations. 

This being the recognized law, the question then arises whether 
the assessment of the tax in question amounted to any interference 
with, or restriction upon the free introduction of the plaintiffs' coal 
from the State of Pennsylvania to the State of Louisiana, and the 



Selected Cases in Constitutional Law. 101 

free disposal of the same in commerce in the latter State ; in other 
words, whether the tax amounted to a regulation of, or restriction 
upon, commerce among the States ; or only to an exercise of local 
administration under the general taxing power, which, though it 
may incidentally affect the subjects of commerce, is entirely within 
the power of the State until Congress shall see fit to interfere and 
make express regulations on the subject. 

As to the character and mode of the assessment, little need be 
added to what has already been said. It was not a tax imposed 
upon the coal as a foreign product, or as the product of another 
State than Louisiana, nor a tax imposed by reason of the coal be- 
ing imported or brought into Louisiana, nor a tax imposed whilst 
it was in a state of transit through that State to some other place 
of destination. It was imposed after the coal had arrived at its 
destination and was put up for sale. The coal had come to its 
place of rest, for final disposal or use, and was a commodity in the 
market of New Orleans. It might continue in that condition for 
a year or two years, or only for a day. It had become a part of 
the general mass of property in the State, and as such it was taxed 
for the current year (1880), as all other property in the City of 
New Orleans was taxed. Under the law, it could not be taxed 
again until the following year. It was subjected to no discrimina- 
tion in favor of goods which were the product of Louisiana, or 
goods which were the property of citizens of Louisiana. It was 
treated in exactly the same manner as such goods were treated. 
It cannot be seriously contended, at least in the absence of any 
congressional legislation to the contrary, that all goods which are 
the product of other States are to be free from taxation in the State 
to which they may be carried for use or sale. Take the City of 
New York, for example. When the assessor of taxes goes his 
round, must he omit from his list of taxables all goods which have 
come into the city from the factories of New England and New 
Jersey, or from the pastures and grainfields of the West? If he 
must, what will be left for taxation? And how is he to distinguish 
between those goods which are taxable and those which are not? 
With the exception of goods imported from foreign countries, still 
in the original packages, and goods in transit to some other place, 
why may he not assess all property alike that may be found in the 
city, being there for the purpose of remaining there till used or sold, 
and constituting part of the great mass of its commercial capital — 
provided always, that the assessment be a general one, and made 
without discrimination between goods the product of New York, 
and goods the product of other States? Of course, the assessment 
should be a general one, and not discriminative between goods of 
different States. The taxing of goods coming from other States, 
as such, or by reason of their so coming, would be a discriminat- 
ing tax against them as imports, and would be a regulation of in- 
terstate commerce, inconsistent with that perfect freedom of trade 
which Congress has seen fit should remain undisturbed. But if, 
after their arrival within the State, — that being their place of des- 



102 Selected Cases in Constitutional Law. 

tination for use or trade,— if, after this, they are subjected to a 
general tax laid alike on all property within the city, we fail to see 
how such a taxing can be deemed a regulation of commerce which 
would have the objectionable effect referred to. * * * * 

When Congress shall see fit to make a regulation on the subject 
of property transported from one State to another, which may have 
the effect to give it a temporary exemption from taxation in the 
State to which it is transported, it will be time enougjh to consider 
any conflict that may arise between such regulation and the general 
taxing laws of the State. In the present case we see no such con- 
flict, either in the law itself or in the proceedings which have been 
had under it and sustained by the State tribunals, nor any conflict 
with the general rule that a State cannot pass a law which shall 
interfere with the unrestricted freedom of commerce between the 
States. 

In our opinion, therefore, the second assignment of error is un- 
tenable. 

The judgment of the Supreme Court of Louisiana is Affirmed. 



THE DANIEL BALL. 
10 Wallace, 557. 1870. 

An Act of Congress of July 7, 1838, provided that the owner, 
master or captain of any vessel propelled by steam transporting 
merchandise or passengers upon "the bays, lakes, rivers or other 
navigable waters of the United States" must obtain a license. A 
penalty was imposed for a failure to observe the statute. A later 
statute of August 30, 1852, provided for the inspection of such 
vessels. In March, 1868, the Daniel Ball, a vessel propelled by 
steam was engaged in navigating the Grand River in the State of 
Michigan between the cities of Grand Rapids and Grand Haven, 
both of which were in the State of Michigan, and in the transpor- 
tation of merchandise and passengers between those places ; with- 
out having been licensed or inspected under the laws of the Unit- 
ed States. An action was brought by the United States in the Dis- 
trict Court for the Western District of Michigan to recover the 
penalty provided for want of such inspection and license. It was 
contended that the Grand River was a navigable water of the Unit- 
ed States ; and in addition to the employment stated above, that 
the steamer transported merchandise destined for ports and places 
other than the State of Michigan, and was thus engaged in com- 
merce between the States. The owners of the vessel defended that 
the Grand River was not a navigable river, that the steamer was 
engaged solely in domestic commerce and that she was not sub- 
ject to the navigation laws of the United States. 

The District Court dismissed the action. The Circuit Court re- 
versed this decision, and gave a decree for the penalty demanded. 
From this decree the case was brought by appeal to the Supreme 
Court of the United States. 



Selected Cases in Constitutional Law. 103 

Mr. Justice Field delivered the opinion of the court : 

Two questions are presented in this case for our determination. 

First: Whether the steamer was at the time designated in the 
libel engaged in transporting merchandise and passengers on a nav- 
igable water of the United States within the meaning of the acts 
of Congress ; and, 

Second: Whether those acts are applicable to a steamer engaged 
as a common carrier between places in the same State, when a por- 
tion of the merchandise transported by her is destined to places in 
other States, or conies from places without the State, she not run- 
ning in connection with or in continuation of any line of steamers 
or other vessels, or any railway line leading to or from another 
State. 

Upon the first of these questions we entertain no doubt. The 
doctrine of the common law as to the navigability of waters has no 
application in this country. Here the ebb and flow of the tide do 
not constitute the usual test, as in England, or any test at Till of the 
navigability of waters. There no waters are navigable in fact, or 
at least to any considerable extent, which are not subject to the tide, 
and from this circumstance tide water and navigable water there 
signify substantially the same thing. But in this country the case 
is widely different. Some of our rivers are as navigable for many 
hundreds of miles above as they are below the limits of tide water, 
and some of them are navigable for great distances by large vessels, 
which are not even affected by the tide at any point during their 
entire length. A different test must, therefore, be applied to de- 
termine the navigability of our rivers, and that is found in their 
navigable capacity. Those rivers must be regarded as public nav- 
igable rivers in law which are navigable in fact. And they are 
navigable in fact when they are used, or are susceptible of being 
used, in their ordinary condition, as highways for commerce, over 
which trade and travel are or may be conducted in the customary 
modes of trade and travel on water. And they constitute navigable 
waters of the United States within the meaning of the acts of Con- 
gress, in contradistinction from the navigable waters of the States, 
when they form in their ordinary condition by themselves, or by 
uniting with other waters, a continued highway over which com- 
merce is or may be carried on with other States or foreign coun- 
tries in the customary modes in which such commerce is conducted 
by water. 

If we apply this test to Grand River, the conclusion follows that 
it must be regarded as a navigable water of the United States. 
From the conceded facts in the case the stream is capable of bearing 
a steamer of one hundred and twenty-three tons burden, laden with 
merchandise and passengers, as far as Grand Rapids, a distance of 
forty miles from its mouth in Lake Michigan. And by its junction 
with the lake it forms a continued highway for commerce, both with 
other States and with foreign countries, and is thus brought under 
the direct control of Congress in the exercise of its commercial 
power. * * * * 



104 Selected Cases in Constitutional Law. 

But it is contended that the steamer Daniel Ball was only engaged 
in the internal commerce of the State of Michigan, and was not, 
therefore, required to be inspected or licensed, even if it be conceded 
that Grand River is a navigable water of the United States ; and 
this brings us to the consideration of the second question presented. 

There is undoubtedly an internal commerce which is subject to 
the control of the States. The power delegated to Congress is 
limited to commerce "among the several States," with foreign na- 
tions and with the Indian tribes. This limitation necessarily ex- 
cludes from Federal control all commerce not thus designated, and 
of course that commerce which is carried on entirely within the 
limits of a State, and does not extend to or affect other States. In 
this case it is admitted that the steamer was engaged in shipping 
and transporting down Grand River, goods destined and marked 
for other States than Michigan, and in receiving and transporting 
up the river goods brought within the State from without its lim- 
its ; but inasmuch as her agency in the transportation was entirely 
within the limits of the State, and she did not run in connection 
with, or in continuation of, any line of vessels or railway leading 
to other States, it is contended that she was engaged entirely in 
domestic commerce. But this conclusion does not follow. So far 
as she was employed in transporting! goods destined for other 
States, or goods brought from without the limits of Michigan and 
destined to places within that State, she was engaged in commerce 
between the States, and however limited that commerce may have 
been, she was, so far as it went, subject to the legislation of Con- 
gress. She was employed as an instrument of that commerce ; for 
whenever a commodity has begun to move as an article of trade 
from one State to another, commerce in that commodity between 
the States has commenced. The fact that several different and 
independent agencies are employed in transporting the commodity, 
some acting entirely in one State, and some acting through two or 
more States, does in no respect affect the character of the trans- 
action. To the extent in which each agency acts in that transpor- 
tation, it is subject to the regulation of Congress. 

It is said that if the position here asserted be sustained, there is 
no such thing as the domestic trade of a State ; that Congress may 
take the entire control of the commerce of the country, and extend 
its regulations to the railroads within a State on which grain or 
fruit is transported to a distant market. We answer that the pres- 
ent case relates to transportation on the navigable waters of the 
United States, and we are not called upon to express an opinion 
upon the power of Congress over interstate commerce when car- 
ried on by land transportation. 

Decree of the Circuit Court is Affirmed. 



Selected Cases in Constitutional Law. 105 

LORD v. STEAMSHIP COMPANY. 

102 U. S., 541. 1881. 

The steamship Ventura was employed in navigation between San 
Francisco and San Diego, both in the State of California, touch- 
ing also at intermediate ports on the coast in said State. She 
neither took on or put off goods outside of the State ofi Califor- 
nia, in making her voyage passed out upon the Pacific Ocean, out 
of the waters of the State of California and in again. While on a 
regular voyage she was totally lost with all her cargo and in a suit 
brought against her owner to recover the value of the goods lost, 
the steamship company pleaded an exemption from liability under 
an act of Congress relating to interstate and foreign commerce and 
it therefore became important to determine whether she was en- 
gaged in foreign or intrastate commerce. The lower court gave 
judgment for the steamship company whereupon an appeal was 
taken to the United States Supreme Court. 

Mr. Chiee Justice Waite delivered the opinion of the court. 

The single question presented by the assignment of errors is, 
whether Congress has power to regulate the liability of the owners 
of vessels navigating the high seas, but engaged only in the trans- 
portation of goods and passengers between ports and places in the 
same State. It is conceded that while the Ventura carried goods 
from place to place in California, her voyages were always ocean 
voyages. * * * * 

The Pacific Ocean belongs to no one nation, but is the common 
property of all. When, therefore, the Ventura went out from San 
Francisco or San Diego on her several voyages^ she entered on a 
navigation which was necessarily connected with other nations. 
While on the ocean her national character only was recognized, and 
she was subject to such laws as the commercial nations of the world 
had, by usage or otherwise, agreed on for the government of the 
vehicles of commerce occupying this common property of all man- 
kind. She was navigating among the vessels of other nations and 
was treated by them as belonging to the country whose flag she 
carried. True, she was not trading with them, but she was navi- 
gating with them, and consequently with them was engaged in 
commerce. In every just sense, therefore, she was, while on the 
ocean, engaged in commerce with foreign nations, and as such she 
and the business in which she was engaged were subject to the 
regulating power of Congress. Judgment affirmed. 

GLOUCESTER FERRY COMPANY v. PENNSYLVANIA. 

114 U. S., 196. 1885. 

The Gloucester Ferry Company was incorporated in 1865 under 
the laws of the State of New Jersey to establish a steamboat ferry 
from the town of Gloucester, New Jersey, to the City of Philadel- 



106 Selected Cases in Constitutional Law. 

phia, Pennsylvania. It established and has maintained such a ferry, 
and has at the places named a slip or dock on which passengers 
arid freight are received and landed. The dock in Philadelphia is 
leased. The one in Gloucester is owned by the company. A stat- 
ute of Pennsylvania, passsd June 7, 1879, provided in substance 
that any company or association incorporated in Pennsylvania or 
elsewhere and doing business within the State should pay annually 
a tax computed upon its capital stock according to the dividends 
declared. The Court of Common Pleas of Philadelphia held that 
the tax could not be lawfully levied upon the company as the land- 
ing of passengers and freight was the only business carried on by 
the company in the State and was protected by the Constitution 
from State legislation as interstate commerce. The Supreme Court 
of Pennsylvania on appeal decided in favor of the tax, and to review 
this judgment an appeal was taken to the Supreme Court of the 
United States. 

Mr. Justice Field delivered the opinion of the court. 

* * * * <As to the first reason thus expressed, it may be answered 
that the business of landing and receiving passengers and freight 
at the wharf in Philadelphia is a necessary incident to, indeed, is 
a part of, their transportation across the Delaware River from New 
Jersey. Without it that transportation would be impossible. Trans- 
portation implies the taking up of persons or property at some 
point and putting them down at another. A tax, therefore, upon 
such receiving and landing of passengers and freight is a tax upon 
their transportation ; that is, upon the commerce between the two 
States involved in such transportation. * * * * Commerce among the 
States consists of intercourse and traffic between their citizens, and 
includes the transportation of persons and property, and the navi- 
gation of public waters for that purpose, as well as the purchase, sale 
and exchange of commodities. The power to regulate that com- 
merce, as well as commerce with foreign nations, vested in Con- 
gress, is the power to prescribe the rules by which it shall be gov- 
erned, that is, the conditions upon which it shall be conducted ; to 
determine when it shall be free and when subject to duties or oth- 
er exactions. 

Judgment of the Supreme Court of Pennsylvania is reversed. 



Sub-Section B. 

Extent of the Power of the States over Commerce. 

1. The State Taxing Power as Affecting Commerce. 

BROWN v. MARYLAND. 

12 Wheaton, 419. 1827. 

A statute of Maryland, passed in 1821, provided that all import- 
ers of foreign commodities or articles and persons selling t!ie same 



Selected Cases in Constitutional Law. 107 

by wholesale, bale or package, hogshead, barrel, or tierce should, 
before being authorized to sell the same take out a license for 
which they should pay fifty dollars. In case of neglect or refusal to 
pay the license, a heavy penalty was imposed by the statute. Brown 
was charged with having imported and sold one package of for- 
eign dry goods without having a license to do so. He was fined 
by the State court and the Court of Appeals upheld the lower court. 
An appeal was taken to the Supreme Court of the United States 
on the ground that the legislature of a State could not constitu- 
tionally require the importer of foreign articles to take out a li- 
cense before being permitted to sell a bale or package so imported. 

Mr. Chief Justice Marshall delivered the opinion of the 
court : — 

^ The plaintiffs in error take the burden upon themselves, and in- 
sist that the act under consideration is repugnant to two provisions 
in the Constitution of the United States. 

i. To that which declares that "no State shall, without the con- 
sent of Congress, lay any imposts or duties on imports or exports, 
except what may be absolutely necessary for executing its inspec- 
tion laws." 

2. To that which declares that Congress shall have power "to 
regulate commerce with foreign nations, and among the several 
States, and with the Indian tribes." 

I. The first inquiry is into the extent of the prohibition upon 
States "to lay any imposts or duties on imports or exports." The 
counsel for the State of Maryland would confine this prohibition to 
laws imposing duties on the act of importation or exportation. The 
counsel for the plaintiffs in error give them a .'much wider scope. 

^ ^ $z ^c 

What, then, is the meaning of the words, "imposts or duties on 
imports or exports?" 

An impost, or duty on imports, is a custom or a tax levied on ar- 
ticles brought into a country, and is most usually secured before the 
importer is allowed to exercise his rights of ownership over them, 
because evasions of the law can be prevented more certainly by exe- 
cuting it while the articles are in its custody. It would not, how- 
ever, be less an impost or duty on the articles, if it were to be levied 
on them after they were landed. The policy and consequent prac- 
tice of levying or securing the duty before or on entering the port, 
does not limit the power to that state of things, nor, consequently, 
the prohibition, unless the true meaning of the clause so confines it. 
What, then, are "imports"? The lexicons inform us they are 
"things impoited." If we appeal to usage for the meaning of the 
word, we shall receive the same answer. They are the articles 
themselves which are brought into the country. "A duty on im- 
ports," then, is not merely a duty on the act of importation, but is 
a duty on the thing imported. It is not, taken in its literal sense, 
confined to a duty levied while the article is entering the country, 
but extends to a duty levied after it has entered the country. The 



108 Selected Cases in Constitutional Law. 

succeeding words of the sentence which limit the prohibition, show 
the extent in which it was understood. The limitation is "except 
what may be absolutely necessary for executing its inspection 
laws." Now, the inspection laws, so far as they act upon articles 
for exportation, are generally executed on land, before the article 
is put on board the vessel ; so far as they act upon importations, 
they are generally executed upon articles which are landed. The 
tax or duty of inspection, then, is a tax which is frequently, if not 
always paid for service performed on land, while the article is in 
the bosom of the country. Yet this tax is an exception to the pro- 
hibition on the States to lay duties on imports or exports. The 
exception was made because the tax would otherwise have been 
within the prohibition. * . * * * 

From the vast inequality between the different States of the con- 
federacy, as tc commercial advantages, few subjects were viewed 
with deeper interest, or excited more irritation, than the manner in 
which the several States exercised, or seemed disposed to exercise, 
the power of laying duties on imports. From motives which were 
deemed sufficient by the statesmen of that day, the general power 
of taxation, indispensably necessary as it was, and jealous as the 
States were of any encroachment on it, was so far abridged as to 
forbid them to touch imports or exports, with the single exception 
which has been noticed. Why are they restrained from imposing 
these duties? Plainly, because, in the general opinion, the interest 
of all would be best promoted by placing that whole subject under 
the control of Congress. Whether the prohibition to "lay imposts, 
or duties on imports or exports," proceeded from an apprehension 
that the power might be so exercised as to disturb that equality 
among the States which was generally advantageous, or that har- 
mony between them which it was desirable to preserve, or to main- 
tain unimpaired our commercial connections with foreign nations, 
or to confer this source of revenue on the government of the Union, 
or whatever other motive might have induced the prohibition, it is 
plain that the object would be as completely defeated by a power 
to tax the article in the hands of the importer the instant it was 
landed, as by a power to tax it while entering the port. There is 
no difference, in effect, between a power to prohibit the sale of an 
article, and a power to prohibit its introduction into the country. 
The one would be a necessary consequence of the other. No goods 
would be imported if none could be sold. No objection of any de- 
scription can be accomplished by laying a duty on importation, 
which may not be accomplished with equal certainty by laying a 
duty on the thing imported in the hands of the importer. It is ob- 
vious that the same power which imposes a light duty, can impose 
a very heavy one, one which amounts to a prohibition. Questions 
of power do not depend on the degree to which it may be exer- 
cised. If it may be exercised at all, it must be exercised at the will 
of those in whose hands it is placed. If the tax may be levied in 
this form by a State, it may be levied to an extent which will de- 
feat the revenue by imposts, so far as it is drawn from importations 



Selected Cases in Constitutional Law. 109 

into the particular State. We are told that such wild and irrational 
abuse of power is not to be apprehended, and is not to be taken 
into view, when discussing its existence. All power may be abus- 
ed ; and if the fear of its abuse is to constitute an argument against 
its existence, it might be urged against the existence of that 
which is universally acknowledged, and which is indispensable to 
the general safety. The States will never be so mad as to destroy 
their own commerce, or even to lessen it. 

We do not dissent from these general propositions. We do not 
suppose any State would act so unwisely. But we do not place the 
question on that ground. * * * * 

The counsel for the State of Maryland insist, with great reason, 
that if the words of the prohibition be taken in their utmost lati- 
tude, they will abridge the power of taxation, which all admit to 
be essential to the States, to an extent which has never yet been 
suspected, and will deprive them of resources which are necessary 
to supply revenue, and which they have heretofore been admitted 
to possess. These words must, therefore, be construed with some 
limitation ; and, if this be admitted, they insist, that entering the 
country is the point of time when the prohibition ceases, and the 
power of the State to tax commences. 

It may be conceded that the words of the prohibition ought not 
to be pressed to their utmost extent ; that in our complex system, 
the object of the powers conferred on the government of the Union, 
and the nature of the often conflicting powers which remain in the 
States, must always be taken into view, and may aid in expounding 
the words of any particular clause. But, while we admit that sound 
principles of construction ought to restrain all courts from carry- 
ing the words of the prohibition beyond the object the Constitution 
is intended to secure ; that there must be a point of time when the 
prohibition ceases, and the power of the State to tax commences ; 
we cannot admit that this point of time is the instant that the arti- 
cles enter the country. It is, we think, obvious, that this construc- 
tion would defeat the prohibition. 

The constitutional prohibition on the States to lay a duty on im- 
ports, a prohibition which a vast majority of them must feel an 
interest in preserving, may certainly come in conflict with their 
acknowledged power to tax persons and property within their ter- 
ritory. The power, and the restriction on it, though quite distin- 
guishable when they do not approach each other, may yet, like the 
intervening colors between white and black, approach so nearly as 
to perplex the understanding, as colors perplex the vision in mark- 
ing the distinction between them. Yet the distinction exists, and 
must be marked as the cases arise. Till they do arise, it might be 
premature to state any rule as being universal in its application. It 
is sufficient for the present to say, generally, that when the im- 
porter has so acted upon the thing imported, that it has become in- 
corporated and mixed up with the mass of property in the country, 
it has, perhaps, lost its distinctive character as an import, and has 
become subject to the taxing power of the State; but while remain- 



HO Selected Cases in Constitutional Law. 

ing the property of the importer, in his warehouse, in the original 
form or package in which it was imported, a tax upon it is too 
plainly a duty on imports to escape the prohibition in the Consti- 
tution. 

The counsel for the plaintiffs in error contend that the importer 
purchases, by payment of the duty to the United States, a right to 
dispose of his merchandise, as well as to bring it into the country ; 
and certainly the argument is supported by strong reason, as well 
as by the practice of nations, including our own. The object of im- 
portation is sale ; it constitutes the motive for paying the duties ; 
and if the United States possess the power of conferring the right 
to sell, as the consideration for which the duty is paid, every prin- 
ciple of fair dealing requires that they should be understood to con- 
fer it. The practice of the most commercial nations conforms to 
this idea. Duties, according to that practice, are charged on those 
articles only which are intended for sale or consumption in the coun- 
try. Thus, sea stores, goods imported and re-exported in the same 
vessel, goods landed and carried overland for the purpose of be- 
ing re-exported from some other port, goods forced in by stress 
of weather, and landed, but not for sale, are exempted from the 
payment of duties. The whole course of legislation on the subject 
shows that, in the opinion of the legislature, the right to sell is con- 
nected with the payment of duties. 

This indictment is against the importer, for selling a package of 
dry goods in the form in which it was imported, without a license. 
This state of things is changed if he sells them or otherwise mixes 
them with the general property of the State, by breaking up his 
packages and travelling with them as an itinerant peddler. In the 
first case, the tax intercepts the import, as an import in its way to 
become incorporated with the general mass of property, and denies 
it the privilege of becoming so incorporated until it shall have con- 
tributed to the revenue of the State. It denies to the importer the 
right of using the privilege which he has purchased from the Unit- 
ed States, until he shall have also purchased it from the State. In the 
last cases, the tax finds the article already incorporated with the 
mass of property by the act of the importer. He has used the priv- 
ilege he had purchased, and has himself mixed them up with the 
common mass, and the law may treat them as it finds them. The 
same observations apply to plate, or other furniture used by the 
importer. 

So if he sells by auction. Auctioneers are persons licensed by the 
State, and if the importer chooses to employ them, he can as little 
object to paying for this service, as for any other for which he may 
apply to an officer of the State. The right of sale may very well be 
annexed to importation, without annexing to it, also, the privilege 
of using the officers licensed by the State to make sales in a pecu- 
liar way. * * * * 

We think then, that the act under which the plaintiffs in error 
were indicted is repugnant to that article of the Constitution which 



Selected Cases in Constitutional Law. Ill 

declares, that "no State shall lay any impost or duties on imports 
or exports." 

Is it also repugnant to that clause in the Constitution which 
empowers "Congress to regulate commerce with foreign nations, 
and among the several States, and with the Indian tribes"? 

The oppressed and degraded state of commerce previous to the 
adoption of the Constitution can scarcely be forgotten. It was reg- 
ulated by foreign nations with a single view to their own interests ; 
and our disunited efforts to counteract their restrictions were ren- 
dered impotent by want of combination. Congress, indeed, possess- 
ed the power of making treaties ; but the inability of the Federal 
government to enforce them had become so apparent as to render 
that power in a great degree useless. Those who felt the injury 
arising from this state of things, and those who were capable of 
estimating the influence of commerce on the prosperity of nations, 
perceived the necessity of giving the control over this important 
subject to a single government. It may be doubted whether any 
of the evils proceeding from the feebleness of the Federal govern- 
ment contributed more to the great revolution which introduced 
the present system than the deep and general conviction that com- 
merce ought to be regulated by Congress. It is not, therefore, mat- 
ter of surprise, that the grant should be as extensive as the mis- 
chief, and should comprehend all foreign commerce and all com- 
merce among the States. To construe the power so as to impair 
its efficacy, would tend to defeat an object in the attainment of 
which the American public took, and justly took that strong inter- 
est which arose from a full conviction of its necessity. 

What, then, is the just extent of a power to regulate commerce 
with foreign nations, and among the several States? 

This question was considered in the case of Gibbons v. Ogden, 
9 Wheat. I, in which it was declared to be complete in itself, and to 
acknowledge no limitations other than are prescribed by the Consti- 
tution. The power is co-extensive with the subject on which it acts, 
and cannot be stopped at the external boundary of a State, but must 
enter its interior. * * * * 

If this power reaches the interior of a State, and may be there 
exercised, it must be capable of authorizing the sale of those arti- 
cles which it introduces. Commerce is intercourse ; one of its most 
ordinary ingredients is traffic. It is inconceivable that the power to 
authorize this traffic, when given in the most comprehensive terms, 
with the intent that its efficacy should be complete, should cease at 
the point when its continuance is indispensable to its value. To what 
purpose should the power to allow importation be given, unaccom- 
panied with the power to authorize a sale of the thing imported? 
Sale is the object of importation, and is an essential ingredient 
of that intercourse, of which importation constitutes a part. It is as 
essential an ingredient, as indispensable to the existence of the en- 
tire thing, then, as importation itself. It must be considered as a 
component part of the power to regulate commerce. Congress has 



112 Selected Cases in Constitutional L 



A.W. 



a right, not only to authorize importation, but to authorize the im- 
porter to sell. 

If this be admitted, and we think it cannot be denied, what can 
be the meaning of an act of Congress which authorizes importation, 
and offers the privilege for sale at a fixed price to every person who 
chooses to become a purchaser ? How is it to be construed if an in- 
tent to deal honestly and fairly, an intent as wise as it is moral, is to 
enter into the construction? What can be the use of the contract, 
what does the importer purchase, if he does not purchase the priv- 
ilege to sell? * * * * 

We think, then, that if the power to authorize a sale exists in 
Congress, the conclusion that the right to sell is connected with 
the law permitting importation, as an inseparable incident, is inev- 
itable. 

If the principles we have stated be correct, the result to which 
they conduct us cannot be mistaken. Any penalty inflicted on the 
importer for selling the article, in his character of importer, must 
be in opposition to the Act of Congress which authorizes importa- 
tion. Any charge on the introduction and incorporation of the ar- 
ticles into and with the mass of property in the country, must be 
hostile to the power given to Congress to regulate commerce, since, 
an essential part of that regulation, and principal object of it, is, 
to prescribe the regular means for accomplishing that introduction 
and incorporation. * * * * 

We think there is error in the judgment of the Court of Appeals 
of the State of Maryland imposing the penalty. 

Judgment is reversed. 



ROBBINS v. SHELBY COUNTY TAXING DISTRICT. 

120 U. S,, 489. 1886. 

Robbins, the defendant in the lower court, was engaged in so- 
liciting sales of goods in the city of Memphis, Tennessee, for the 
firm of Rose, Robbins & Co., of Cincinnati, Ohio, and in obtaining 
orders, he exhibited samples of the goods, — an employment usually 
denominated as that of a "drummer." A statute of Tennessee, re- 
lating to taxation, provided "that drummers, and all persons not 
having a regular licensed house of business in the taxing district 
offering for sale or selling goods, wares or merchandise by sam- 
ple shall be required to pay to the county trustee the sum of $10 
per week, or $25 per month for such privilege, and no license 
shall be issued for a longer period than three months." The statute 
further provided for a fine and imprisonment in case of the viola- 
tion of the act. Under this law Robbins, who had not paid the tax,was 
convicted and sentenced to pay a fine. The Supreme Court of the 
State held that the statute was constitutional and affirmed the judg- 
ment of the lower court. An appeal was then taken to he United 
States Supreme Court on the ground that the statute was repugnant 



Selected Cases in Constitutional Law. 113 

to the clause of the Constitution giving to Congress the power to 
regulate commerce among the several States. 

Mr. Justice Bradley delivered the opinion of the court. 

"The principal question argued before the Supreme Court of Ten- 
nessee was as to the constitutionality of the act which imposed the 
tax on drummers ; and the court decided that it was constitutional 
and valid. 

That is the question before us, and it is one of great importance 
to the people of the United States, both as it respects their business 
interests and their constitutional rights. It is presented in a nut- 
shell, and does not, at this day, require for its solution any great 
elaboration of argument or review of authorities. Certain principles 
have been already established by the decisions of this court which 
will conduct us to a satisfactory decision. Among those principles 
are the following: 

1. The Constitution of the United States having given to Con- 
gress the power to regulate commerce, not only with foreign na- 
tions, but among the several States, that power is necessarily exclu- 
sive whenever the subjects of it are national in their character, or 
admit only of one uniform system, or plan of regulation. 

2. Another established doctrine of this court is that where the 
power of Congress to regulate is exclusive the failure of Congress 
to make express regulations indicates its will that the subject shall' 
be left free from any restrictions or impositions ; and any regulation 
of the subject by the States, except in matters of local concern only, 
as hereafter mentioned, is repugnant to such freedom. 

3. It is also an established principle, as already indicated, that the* 
only way in which commerce between the States can be legitimately 
affected by State laws, is when, by virtue of its police power, and' 
its jurisdiction over persons and property within its limits, a State 
provides for the security of the lives, limbs, health, and comfort of 
persons and the protection of property; or when it does those 
things which may otherwise incidentally affect commerce, such as 
the establishment and regulations of highways, canals, railroads,, 
wharves, ferries, and other commercial facilities ; the passage of in- 
spection laws to secure the due quality and measure of products 
and commodities ; the passage of laws to regulate or restrict the 
sale of articles deemed injurious to the health or morals of the 
community; the imposition of taxes upon persons residing within 
the State or belonging to its population, and upon avocations and 
employments pursued therein, not directly connected with foreign 
or interstate commerce or with some other employment or business 
exercised under authority of the Constitution and laws of the 
United States ; and the imposition of taxes upon all property with- 
in the State, mingled with and forming part of the great mass of 
property therein. But in making such internal regulations a State 
cannot impose taxes upon persons passing through the State, or 
coming into it merely for a temporary purpose, especially if con- 
nected with interstate or foreign commerce ; nor can it impose such 
taxes upon property imported into the State from abroad, or from 



114 Selected Cases in Constitutional Law. 

another State, and not yet become part of the common mass of 
property therein; and no discrimination can be made, by any such 
regulations, adversely to the persons or property of other States; 
and no regulations can be made directly affecting- interstate com- 
merce. Any taxation or regulation of the latter character would 
be an unauthorized interference with the power given to Congress 
•over the subject. * * * • * 

In a word, it may be said that in the matter of interstate com- 
merce the United States are but one country, and are and must be 
subject to one system of regulations, and not to a multitude of sys- 
tems. The doctrine of the freedom of that commerce, except as 
regulated by Congress, is so firmly established that it is unneces- 
sary to enlarge further upon the subject. 

In view of these fundamental principles, which are to govern our 
decision, we may approach the question submitted to us in the 
present case, and inquire whether it is competent for a State to levy 
a tax or impose any other restriction upon the citizens or inhabitants 
of other States, for selling or seeking to sell their goods in such 
State before they are introduced therein. Do not such restrictions 
affect the very foundation of interstate trade? How is a manufac- 
turer, or a merchant, of one State, to sell his goods in another 
State, without, in some way, obtaining orders therefor? Must he 
be compelled to send them, at a venture, without knowing whether 
there is any demand for them? This may, undoubtedly, be safely 
done with regard to some products for which there is always a 
market -and a demand, or where the course of trade has established 
a generjal and unlimited demand. A raiser of farm produce in 
New Jersey or Connecticut, or a manufacturer of leather or wooden 
ware, may, perhaps, safely take his goods to the city of New York 
and be sure of finding a staple and reliable market for them. But 
there are hundreds, perhaps thousands, of articles which no per- 
son would think of exporting to another State without first procur- 
ing an order for them. It is true, a merchant or manufacturer in 
one State may erect or hire a warehouse or store in another State, 
in which to place his goods, and await the chances of being able to 
sell them. But this would require a warehouse or a store in every 
State with which he might desire to trade. Surely, he cannot be 
compelled to take this inconvenient and expensive course. In cer- 
tain branches of business, it may be adopted with advantage. Many 
manufacturers do open houses or places of business in other States 
than those in which they reside, and send their goods there to be 
kept on sale. But this is a matter of convenience, and not of com- 
pulsion, and would neither suit the convenience nor be within the 
ability of many others engaged in the same kind of business, and 
would be entirely unsuited to many branches of business. In these 
cases, then, what shall the merchant or manufacturer do who 
wishes to sell his goods in other States ? Must he sit still in his fac- 
tory or warehouse, and wait for the people of those States to come 
to him? This would be a silly and ruinous proceeding. 

The only other way, and the one, perhaps, which most extensive- 



Selected Cases in Constitutional Law. 115 

ly prevails, is to obtain orders from persons residing or doing busi- 
ness in those other States. But how is the merchant or manufac- 
turer to secure such orders? If he may be taxed by such States 
for doing so, who shall limit the tax? It may amount to prohibi- 
tion. To say that such a tax is not a burden upon interstate com- 
merce is to speak at least unadvisedly and without due attention to 
the truth of things. 

It may be suggested that the merchant or manufacturer has the 
post-office at his command, and may solicit orders through the mails. 
We do not suppose, however, that any one would seriously contend 
that this is the only way in which his business can be transacted 
without being amenable to exactions on the part of the State. Be- 
sides, why could not the State to which his letters might be sent, 
tax him for soliciting orders in this way, as well as in any other 
way? 

The truth is, that, in numberless instances, the most feasible, if 
not the only practicable, way for the merchant or manufacturer to 
obtain orders in other States is to obtain them by personal applica- 
tion, either by himself, or by some one employed by him for that 
purpose ; and in many branches of business he must necessarily 
exhibit samples for the purpose of determining the kind and quality 
of the goods he proposes to sell, or which the other party desires to 
purchase. But the right of taxation, if it exists at all, is not con- 
fined to selling by sample. It embraces every act of sale, whether 
by word of mouth only, or by the exhibition of samples. If the 
right exists, any New York or Chicago merchant visiting New Or- 
leans or Jacksonville, for pleasure or for his health, and casually 
taking an order for goods to be sent from his warehouse, could be 
made liable to pay a tax for so doing, or be, convicted of a misde- 
meanor for not having taken out a license. The right to tax would 
apply equally as well to the principal as to his agent, and to a sin- 
gle act of sale as to a hundred acts. * * * * 

It is strongly urged, as if it were a material point in the case, that 
no discrimination is made between domestic and foreign drummers 
— those of Tennessee and those of other States ; that all are taxed 
alike. But that does not meet the difficulty. Interstate commerce 
cannot be taxed at all, even though the same amount of tax should 
be laid on domestic commerce, or that which is carried on solely 
within the State. This was decided in the case of The State 
Freight Tax, 1 5 Wall. 232. The negotiation of sales of goods which 
are in another State, for the purpose of introducing them into the 
State in which the negotiation is made, is interstate commerce. A 
New Orleans merchant cannot be taxed there for ordering goods 
from London or New York, because, in the one case, it is an act of 
foreign, and, in the other, of interstate commerce, both of which 
are subject to regulation by Congress alone. 

It would not be difficult, however, to show that the tax authorized 
by the State of Tennessee in the present case is discriminative 
against the merchants and manufacturers of. other States. They can 
•only sell their goods in Memphis by the employment of drummers 



116 Selected Cases in Constitutional Law. 

and by means of samples ; whilst the merchants and manufacturers 
of Memphis, having regular licensed houses of business there, have 
no occasion for such agents, and, if they had, they are not subject 
to any tax therefor. They are taxed for their licensed houses, it is 
true ; but so, it is presumable, are the merchants and manufacturers 
of other States in the places where they reside ; and the tax on 
drummers operates greatly to their disadvantage in comparison with 
the merchants and manufacturers of Memphis. And such was un- 
doubtedly one of its objects. This kind of taxation is usually im- 
posed at the instance and solicitation of domestic dealers, as a 
means of protecting them from foreign competition. And in many- 
cases there may be some reason in their desire for such protection. 
But this shows in a still stronger light the unconstitutionality of the 
tax. It shows that it not only operates as a restriction upon inter- 
state commerce, but that it is intended to have that effect as one 
of its principal objects. And if a State can, in this way, impose 
restrictions upon interstate commerce for the benefit and protection 
of its own citizens, we are brought back to the condition of things 
which existed before the adoption of the Constitution, and which 
was one of the principal causes that led to it. 

The judgment of the Supreme Court of Tennessee is reversed,, 
and the plaintiff in error discharged. 



MAINE v. GRAND TRUNK RAILWAY COMPANY. 

142 U. S., 217. 1891. 

The State of Maine in 1881 passed a statute providing that every 
corporation operating a railroad in the State was to pay an annual 
franchise tax for the privilege of exercising its franchises in the 
State. The amount of the tax to be paid was to be determined by 
the amount of the corporation's gross transportation receipts. The 
act further provided that when applied to a railroad lying partly 
within and partly without the State, the tax should be assessed upon 
that proportion of the gross receipts which, the number of miles of 
the railroad in the State bore to the whole number of miles of rail- 
road operated by the corporation. The lines of the Grand Trunk 
Railway Company were partly within and partly without the State 
of Maine and the railway company resisted the payment of the tax 
on the ground that it was void as a regulation of interstate com- 
merce. The State of Maine brought an action in its own courts 
to recover the amount of the tax assessed upon the Grand Trunk 
Railway Company, but on application of the defendant railway the 
case was transferred to the Circuit Court of the United States, 
which court held that this tax was a regulation of interstate com- 
merce and gave judgment for the defendant railway, whereupon 
the State took an appeal to the United States Supreme Court. 

Mr. Justici Field delivered the opinion of the court. 

The privilege of exercising the franchises of a corporation with- 



Selected Cases in Constitutional Law. 117 

In a State is generally one of value, and often of great value, and 
the subject of earnest contention. It is natural, therefore, that the 
corporation should be made to bear some proportion of the burdens 
of government. As the granting of the privilege rests entirely in 
the discretion of the State, whether the corporation be of domestic 
or foreign origin, it may be conferred upon such conditions, pe- 
cuniary or otherwise, as the State in its jdugment may deem most 
conducive to its interests or policy. It may require the payment 
into its treasury, each year, of a specific sum, or may apportion 
the amount exacted according to the value of the business permit- 
ted, as disclosed by its gains or receipts of the present or past years. 
The character of the tax, or its validity, is not determined by the 
mode adopted in fixing its amount for any specific period or the 
times of its payment. * * * * The rule of apportioning the charge to 
the receipts of the business would seem to be eminently reasonable, 
and likely to produce the most satisfactory results, both to the State 
and the corporation. 

The court below held that the imposition of the taxes was a reg- 
ulation of commerce, interstate and foreign, and therefore in con- 
flict with the exclusive power of Congress in that respect; and on 
that ground alone it ordered judgment for the defendant. This 
Tilling was founded upon the assumption that a reference by the 
statute to the transportation receipts and to a certain percentage 
of the same in determining the amount of the excise tax, was in 
effect the imposition of the tax upon such receipts, and therefore 
an interference with interstate and foreign commerce. But a re- 
sort to those receipts was simply to ascertain the value of the busi- 
ness done by the corporation, and thus obtain a guide to a reason- 
able conclusion as to the amount of the excise tax which should 
be levied ; and we are unable to perceive in that resort any inter- 
ference with transportation, domestic or foreign, over the road of 
the railroad company, or any regulation of commerce which con- 
sists in such transportation. 

Reversed, and cause remanded with directions to enter judgment 
in favor of the State for the amount of taxes demanded. 



LEHIGH VALLEY RAILROAD COMPANY v. PENNSYL- 
VANIA. 

1 145 U. S., 192. 1891. 

The Lehigh Valley Railroad Company, a Pennsylvania corpora- 
tion, has no line of its own to Philadelphia. For the traffic from 
Mauch Chunk, Pa., to Philadelphia, Pa., it makes use of its own 
line to Phillipsburg, New Jersey, connecting with the lines of the 
Pennsylvania Railroad at that point, and thence via Trenton, in 
that State, to Philadelphia. By the running arrangements between 
the Lehigh and Pennsylvania companies, the transportation of 
through freight and passengers is continuous from Mauch Chunk to 



118 Selected Cases in Constitutional Law. 

Philadelphia. Under the act of June 7, 1879, tne State of Penn- 
sylvania taxed the gross receipts of railroads doing business in the 
State. In levying the tax on the Lehigh Valley Railroad Company, 
only such portion of its gross receipts was taxed, as the num- 
ber of miles of its road in the State bore to the whole number of 
miles of road owned by the company. (This was in accord with 
the provisions of the act). The Lehigh Valley Railroad Company 
resisted payment of the tax so far as it was computed on the con- 
tinuous transportations from Mauch Chunk to Philadelphia, on the 
ground those transportations were transactions of interstate com- 
merce. The Supreme Court of Pennsylvania gave judgment in 
favor of the State against the railroad for the recovery of the taxes 
assessed, whereupon the railroad appealed to the United States 
Supreme Court. 

Mr. Chief Justice Fuller delivered the opinion of the court. 

The tax under consideration here was determined in respect of 
receipts,, for the proportion of the transportation within the State, 
but the contention is that this could not be done because the trans- 
portation was an entire thing, and in its course passed through an- 
other State than that of the origin and destination of the partic- 
ular freight and passengers. There was no breaking of bulk or 
transfer of passengers in New Jersey. The point of departure and 
the point of arrival were alike in Pennsylvania. The intercourse 
was between those points and not between any other points. Is 
such intercourse, consisting of continuous transportation between 
two points in the same State, made interstate because in its ac- 
complishment some portion of another State may be traversed? Is 
the transmission of freight or messages between two places in the 
same State made interstate business by the deviation of the rail- 
road or telegraph line on to the soil of another State? 

If it has happened that through engineering difficulties, as the 
interposition of a mountain or a river, the line is deflected so as 
to cross the boundary and run for the time being in another State 
than that of its principal location, does such detour in itself im- 
press an external character on internal intercourse? 

It should be remembered that the question does not arise as to 
the power of any other State than the State of the termini, nor as 
to taxation upon property of the company situated elsewhere than 
in Pennsylvania, nor as to the regulation by Pennsylvania of the 
operations of this or any other company elsewhere, but is simply 
whether, in the carriage of freight and passengers between two 
points in one State, the mere passage over the soil of another State 
renders that business foreign which is domestic. We do not think 
such a view can be reasonably entertained, and are of the opinion 
that this taxation is not open to constitutional objection by reason 
of the particular way in which Philadelphia was reached from 
Mauch Chunk. 

Judgment of the State court sustaining the validity of the tax 

Affirmed* 



Selected Cases in Constitutional Law. 119 

HANLEY V. KANSAS CITY SOUTHERN RAILWAY 

COMPANY 
187 U. S., 617. 1902. 

Goods were transported on a through bill of lading from Fort 
Smith, Arkansas, to Grannis, Arkansas, over the Kansas City South- 
ern Railway, by way of Spiro in the Indian Territory, a distance 
of 116 miles, of which 512 miles are in Arkansas and 64 in the In- 
dian erritory. For this transportation the railroad company charg- 
ed a sum in excess of the rate fixed by the railroad commissioners 
of Arkansas. The Commissioners decided that the company was 
liable to a penalty under the State statute, and asserted their right 
to fix rates for continuous transportation between two points in 
Arkansas, even when a large part of the route is outside the State. 
The railroad company then brought a bill in equity in the Circuit 
Court against the Commissioners seeking an injunction against 
their fixing these rates. 

The Circuit Court decided in favor of the Railroad Company and' 
granted the injunction. The Commissioners then appealed to the 
United States Supreme Court. The question raised is whether 
this transportation was a transaction of interstate or intrastate com- 
merce. It was admitted that if it was interstate, then the State 
commissioners would not have the rigjht to fix the rates. 

Mr. Justice Holmes delivered the opinion of the court. 

"It may be assumed that this power of Congress over commerce 
between Arkansas and the Indian Territory is not less than its pow- 
er over commerce among the States. * * * 

The transportation of these goods certainly went outside of Ar- 
kansas, and we are of the opinion that in its aspect of commerce 
it was not confined within the State. Suppose that the Indian 
Territory were a State and should try to regulate such traffic, what 
would stop it? Certainly not the fiction that the commerce was 
confined to Arkansas. If it could not interfere the only reason 
would be that this was commerce among the States. But if this 
commerce would have that character as against the State supposed 
to have been formed out of the Indian Territory, it would have 
it equally as against the State of Arkansas. If one could not reg- 
ulate it the other could not." 

(The Court distinguishes this case from Lehigh Valley Railroad 
Company v. Pennsylvania, 145 U. S. 192, on the ground that that 
was the case of a tax and was different from an attempt by a 
State directly to regulate the transportation while outside its bor- 
ders. 

Decree of the Circuit Court affirmed. 



STATE TONNAGE TAX CASES. 

12 Wallace, 204. 1870. 

The State of Alabama passed a statute on February 22, 1866, 
imposing a tax "on all steamboats, vessels, and other water crafts 



120 Selected Cases in Constitutional Law. 

plying in the navigable waters of the State. * * * * at the rate of $i 
per ton of the registered tonnage thereof." The question in these 
cases was whether this statute conflicted with the clause of the 
Consitution of the United States ordaining that "no State shall 
without the consent of Congress lay any duty of tonnage." 

Mr. Justice Clifford delivered the judgment of the court. 

The word tonnage, as applied to American ships and vessels, 
must be held to mean their entire internal cubical capacity, or con- 
tents of the ship or vessel expressed in tons of 100 cubical feet 
each. 

Taxes levied by a State upon ships and vessels owned by citizens 
of the State as property, based on a valuation of the same as prop- 
erty, are not within the prohibition of the Constitution, but it is 
equally clear and undeniable that taxes levied by a State upon ships 
and vessels as instruments of commerce and navigation are within 
that clause of the instruments which prohibits the States from 
levying any duty of tonnage, without the consent of Congress ; and 
it makes no difference whether the ships or vessels taxed belong to 
the citizens of the State which levies the tax or the citizens of an- 
other State, as the prohibition is general. * * * * The court is of the 
opinion that the State law levying the taxes in this case is uncon- 
stitutional and void. 



2. State Police Power as Affecting Commerce. 

WILLSON v. BLACKBIRD CREEK MARSH COMPANY. 

2 Peters, 245. 1829. 

A statute of the State of Delaware authorized the Blackbird 
Creek Marsh Company to erect a dam on Blackbird Creek, a nav- 
igable stream wholly within the State. By this dam property along 
the stream was improved, but it blocked the river and stopped nav- 
igation. Willson and others owned a sloop, regularly enrolled ru- 
der an act of Congress and licensed to carry on the coasting trade. 
The owners of the sloop destroyed the dam in getting their boat 
up the creek. The company then sued them for trespass. The 
owners of the sloop sought to justify their act on the theory that the 
Blackbird Creek being a navigable stream, was a highway of in- 
terstate commerce and therefore the State statute permitting the 
company to dam it conflicted with the act of Congress, under which 
they were licensed. The highest court of the State gave judgment 
in favor of the company, whereupon an appeal was taken to the 
United States Supreme Court. 

Mr. Chief Justice Marshall delivered the opinion of the 
court. 

The act of assembly by which the plaintiffs were authorized to 
construct theii dam, shows plainly that this is one of those many 



Selected Cases in Constitutional Law. 121 

creeks, passing through a deep level marsh adjoining the Delaware, 
up which the tide flows for some distance. The value of the prop- 
erty on its banks must be enhanced by excluding* the water from the 
marsh, and the health of the inhabitants probably improved. Meas- 
ures calculated to produce these objects, provided they do not come 
into collision with the powers of the general government, are un- 
doubtedly within those which are reserved to the States. But the 
measure authorized by this act stops a navigable creek, and must 
be supposed to abridge the rights of those who have been accustom- 
ed to use it. But this abridgement, unless it comes in conflict with 
the Constitution or a law of the United States, is an affair between 
the government of Delaware and its citizens, of which this court 
can take no cognizance. 

The counsel for the plaintiffs in error insist that it comes in con- 
flict with the power of the United States "to regulate commerce 
with foreign nations and among the several States.'' 

If Congress had passed any act which bore upon the case — any 
act in execution of the power to regulate commerce, the object of 
which was to control State legislation over those small navigable 
creeks into which the tide flows, and which abound throughout the 
lower country of the middle and southern States — we should feel 
not much difficulty in saying that a State law coming in conflict 
with such act would be void. But Congress has passed no such 
act. The repugnancy of the law of Delaware to the Constitution 
is placed entirely on its repugnancy to the power to regulate com- 
merce with foreign nations and among the several States ; a pow- 
er which has not been so exercised as to' affect the question. 

We do not think that the act empowering the Blackbird Creek 
Marsh Company to place a dam across the creek, can, under all the 
circustances of the case, be considered as repugnant to the power 
to regulate commerce in its dormant state, or as being in conflict 
with any law passed on the subject. 

There is no error, and the judgment is Affirmed. 



COOLEY v. BOARD OF WARDENS OF THE PORT OF 
PHILADELPHIA. 

12 Howard, 299. 185 1. 

These cases were brought to the United States Supreme Court 
by writs of error to the Supreme Court of Pennsylvania. They 
are actions to recover half-pilotage fees collected under a law of 
the State of Pennsylvania, passed March, 1803, providing that a 
vessel which neglects or refuses to take a pilot shall forfeit and 
pay to the master warden of the pilots, for the use of the Society 
for the Relief of Distressed Pilots, one-half the regular amount of 
pilotage. The Supreme Court of Pennsylvania sustained the valid- 
ity of the fees. One of the grounds of error assigned is that the 
State law above referred to contravenes the commerce clause of 
the Constitution of the United States. (Art. 1, Sec. 8, Clause 3). 



122 Selected Cases in Constitutional Law. 

Mr. Justice Curtis delivered the opinion of the court. 

"That the power to regulate commerce includes the regulation 
of navigation, we consider settled. And when we look to the na- 
ture of the service performed by pilots, to the relations which that 
service and its compensations bear to navigation between the sev- 
eral States, and between the ports of the United States and foreign 
countries, we are brought to the conclusion that the regulation of 
the qualifications of pilots, of the modes and times of offering and 
rendering their services, of the responsibilities which shall rest 
upon them, of the powers they shall possess, of the compensation 
they demand, and of the penalties by which their rights and duties 
may be enforced, do constitute regulations of navigation, and con- 
sequently of commerce, within the just meaning of this clause of 
the Constitution. 

The power to regulate navigation is the power to prescribe rules 
in conformity with which navigation must be carried on. It ex- 
tends to the persons who conduct it, as well as to the instruments 
used. * * * * 

It becomes necessary, therefore, to consider whether this law of 
Pennsylvania, being a regulation of commerce, is valid. 

The act of Congress of the 7th of August, 1789, § 4, is as fol- 
lows : 

"That all pilots in the bays, inlets, rivers, harbors, and ports of 
the United States shall continue to be regulated in conformity with 
the existing- laws of the States, respectively, wherein such pilots 
may be, or with such laws as the States may respectively hereafter 
enact for the purpose, until further legislative provision shall be 
made by Congress." * * * * ■ 

If the States were divested of the power to legislate on this sub- 
ject by the grant of the commercial power to Congress, it is plain 
this act could not confer upon them power thus to legislate. If 
the Constitution excluded the States from making- any law regulat- 
ing commerce, certainly Congress cannot regrant, or in any man- 
ner reconvey to the States that power. And yet this act of 1789 
gives its sanction only to laws enacted by the States. This nec- 
essarily implies a constitutional power to legislate ; for only a rule 
created by the sovereign power of a State acting in its legislative 
capacity, can be deemed a law, enacted by a State ; and if the State 
has so limited its sovereign power that it no longer extends to a 
particular subject, manifestly it cannot, in any proper sense, be said 
to enact laws thereon. Entertaining these views, we are brought 
directly and unavoidably to the consideration of the question, 
whether the grant of the commercial power to Congress did po- 
se deprive the States of all power to regulate pilots. This question 
has never been decided by this court, nor, in our judgment, has any 
case depending upon all the considerations which must govern this 
one, come before this court. The grant of commercial power to 
Congress does not contain any terms which expressly exclude the 
States from exercising an authority over its subject-matter. If 
they are exclvded, it must be because the nature of the power, thus 



Selected Cases in Constitutional Law. 123' 

granted to Congress, requires that a similar authority should not 
exist in the States. If it were conceded on the one side, that the 
nature of this power, like that to legislate for the District of Co- 
lumbia, is absolutely and totally repugnant to the existence of sim- 
ilar power in the States, probably no one would deny that the grant 
of the power to Congress, as effectually and perfectly excludes 
the States from all future legislation on the subject, as if express 
words had been used to exclude them. And on the other hand, if it 
were admitted that the existence of this power in Congress, like the 
power of taxation, is compatible with the existence of a similar 
power in the States, then it would be in conformity with the con- 
temporary exposition of the Constitution (Federalist, No. 32), and 
with the judicial construction, given from time to time by this court, 
after the most deliberate consideration, to hold that the mere grant 
of such a power to Congress did not imply a prohibition on the 
States to exercise the same power ; that it is not the mere exist- 
ence of such a power, but its exercise by Congress, which may be 
incompatible with the exercise of the same power by the States, and 
that the States may legislate in the absence of congressional regula- 
tions. * * * * 

Either absolutely to affirm or deny that the nature of this power 
requires exclusive legislation by Congress, is to lose sight, of the 
nature of the subjects of this power, and to assert concerning all of 
them what is really applicable but to a part. Whatever subjects 
of this power are in their nature national, or admit only of one uni- 
form system, a plan of regulation, may justly be said to be of such 
a nature as to require exclusive legislation by Congress. That this 
cannot be affirmed of laws for the regulation of pilots and pilotage, 
is plain. The act of 1789 contains a clear and authoritative declara- 
tion by the first Congress, that the nature of this subject is such that 
until Congress should find it necessary to exert its power, it should 
be left to the legislation of the States ; that it is local and not na- 
tional ; that it is likely to be the best provided for, not by one: sy 
tern, or plan of regulations, but by as many as the legislative dis- 
cretion of the several States should deem applicable to the local 
peculiarities of the ports within their limits. 

Viewed in this light, so much of this act of 1789 as declares that 
pilots shall continue to be regulated "by such laws as the States 
may respectively hereafter enact for that purpose," instead of being 
held to be inoperative, as an attempt to confer on the States a pow- 
er to legislate, of which the Constitution had deprived them, is a 1 - 
lowed an appropriate and important signification. It manifests the 
understanding of Congress, at the outset of the government, that 
the nature of this subject is not such as to require its exclusive leg- 
islation. The practice of the States, and of the national govern- 
ment, has been in conformity with this declaration, from the origin 
of the national government to this time ; and the nature of the sub- 
ject, when examined, is such as to leave no doubt of the superior 
fitness and propriety, not to say the absolute necessity, of different 
systems of regulation, drawn from local knowledge and experience. 



124 Selected Cases in Constitutional LA\y. 

and conformed to local wants. How, then, can we say that by the 
mere grant of power to regulate commerce the States are deprived 
of all the power to legislate on this subject, because from the nature 
of the power the legislation of Congress must be exclusive. This 
would be to affirm that the nature of the power is in this case some- 
thing different from the nature of the subject to which in such case 
the power extends, and that the nature of the power necessarily 
demands in all cases exclusive legislation by Congress, while the 
nature of one of the subjects of that power not only does not re- 
quire such exclusive legislation, but may be best provided for by 
many different systems enacted by the States, in conformity with 
the circumstances of the ports within their limits. In construing an 
instrument designed for the formation of a government, and in 
determining the extent of one of its important grants of power to 
legislate, we can make no such distinction between the nature of 
the power and the nature of the subject on which that power was 
intended practically to operate, nor consider the grant more exten- 
sive, by affirming of the power what is not true of the subject now 
in question. 

It is the opinion of a majority of the court that the mere grant 
to Congress of the power to regulate commerce, did not deprive the 
States of power to regulate pilots, and that although Congress has 
legislated on this subject, its legislation manifests an intention, with 
a single exception, not to regulate this subject, but to leave its regu- 
lation to the several States. * * * * 

We have not adverted to the practical consequences of holding 
that the States possess no power to legislate for the regulation of 
pilots, though in our apprehension these would be of the most se- 
rious importance. For more than sixty years this subject has been 
acted on by the States, and the systems of some of them created 
and of others essentially modified during that period. To hold that 
pilotage fees and penalties demanded and received during that time, 
have been illegally exacted, under color of void laws, would work 
an amount of mischief which a clear conviction of constitutional 
duty, if entertained, must force us to occasion, but which could be 
viewed by no just mind without deep regret. Nor would the mis- 
chief be limited to the past. If Congress were now to pass a law 
adopting the existing State laws, if enacted without authority, and 
in violation of the Constitution, it would seem to us to be a new 
and questionable mode of legislation. 

If the grant of commercial power in the Constitution has deprived 
the States of all power to legislate for the regulation of pilots, if 
their laws on this subject are mere usurpations upon the exclusive 
power of the general government, and utterly void, it may be doubt- 
ed whether Congress could, with propriety, recognize them as ;aws, 
and adopt them as its own acts ; and how are the legislatures of the 
States to proceed in future, to watch over and amend these laws, as 
the progressive wants of a growing commerce will require, when 
the members of those legislatures are made aware that they cannot 



Selected Cases in Constitutional Law. 125 

legislate on this subject without violating the oaths they have taken 
to support the Constitution of the United States? 

We are of opinion that this State law was enacted by virtue :»f a 
power residing in the State to legislate; that it is not in conflict 
wih any law of Congress ; that it does not interfere with any system 
which Congress has established by making regulations, or by in- 
tentionally leaving individuals to their own unrestricted- action ; that 
this law is therefore valid, and the judgment of the Supreme Court 
of Pennsylvania in each case must be aflrmed. 

M'Lean, J., and Wayne, J., dissented; and Daniel, J., although 
he concurred in the judgment of the court, yet dissented from its 
reasoning. 



LEISY v. HARDIN. 

135 U. S., 100. 1890. 

The plaintiffs, residents of Illinois, shipped a certain quality of 
beer to Iowa to be sold there in its original packages. (122 one- 
quarter barrels, 171 one-eighth barrels and 11 sealed cases). The 
beer was seized under an Iowa statute which forbade the sale of 
liquor except for medicinal purposes. This action was brought 
originally in the Superior Court of Keokuk, Iowa, which court 
awarded to plaintiffs the return of the property. This judgment 
was reversed by the Supreme Court of Iowa, whereupon the de- 
cision was brought to the United States Supreme Court for re- 
view. 

Mr. Chief Justice Fuller delivered the opinion of the court. 

The power vested in Congress "to regulate commerce with for- 
eign nations, and among the several States, and with the Indian 
tribes," is the power to prescribe the rule by which the commerce 
is to be governed, and is a power complete in itself, acknowledging 
no limitations other than those prescribed in the Constitution. It 
is co-extensive with the subject on which it acts and cannot be 
stopped at the external boundary of a State, but must enter its 
interior and must be capable of authorizing the disposition of those 
articles which it introduces, so that they may become mingled with 
the common mass of property within the territory entered. Gib- 
bons v. Ogden, 9 Wheat. 1 ; Brown v. Maryland, 12 Wheat. 419. 

And while, by virtue of its jurisdiction over persons and propertv 
within its limits, a State may provide for the security of the lives, 
limbs, health and comfort of persons and the protection of propertv 
so situated, yet a subject matter which has been confided exclusively 
to Congress by the Constitution is not within the jurisdiction of the 
police power of the State, unless placed there by congressional ac- 
tion. Henderson v. Mayor of New York, 92 U. S., 259. The pow- 
er to regulate commerce among the States is a unit, but if particular 
subjects within its operation do not require the application of a 
general or uniform system, the States may legislate in regard to 
them with a view to local needs and circumstances, until Congress 



126 Selected Cases in Constitutional Law. 

otherwise directs ; but the power thus exercised by the States is 
not identical in its extent with the power to regulate commerce 
among the States. The power to pass laws in respect to internal 
commerce, inspection laws, quarantine laws, health laws and laws 
in relation to bridges, ferries and highways, belongs to the class 
of powers pertaining to locality, essential to local intercommuni- 
cation, to the progress and development of local prosperity and to 
the protection, the safety and the welfare of society, originally nec- 
essarily belonging to, and upon the adoption of the Constitution re- 
served by, the States, except so far as falling within the scope of 
a power confided to the general government. Where the subject 
matter requires a uniform system as between the States, the pow- 
er controlling it is vested exclusively in Congress, and cannot be 
encroached upon by the States ; but where, in relation to the sub- 
ject matter, different rules may be suitable for different localities, 
the States may exercise powers which, though they may be said to 
partake of the nature of the power granted to the general govern- 
ment, are strictly not such, but are simply local powers, which have 
full operation until or unless circumscribed by the action of Con- 
gress in effectuation of the general power. Cooley v. Port War- 
dens, 12 How. 299. * * * * 

Whenever, however, a particular power of the general govern- 
ment is one which must necessarily be exercised by it, and Congress 
remains silent, this is not only not a concession that the powers re- 
served by the States may be exerted as if the specific power had not 
been elsewhere reposed, but, on the contrary, the only legitimate 
conclusion is that the general government intended that power 
should not be affirmatively exercised, and the action of the States 
cannot be permitted to effect that which would be incompatible with 
such intention. Hence, inasmuch as interstate commerce, consist- 
ing in the transportation, purchase, sale and exchange of commodi- 
ties, is national in its character, and must be governed by a uni- 
form system, so long as Congress does not pass any law to regu- 
late it, or allowing the States so to do, it thereby indicates its will 
that such commerce shall be free and untrammelled. 

That ardent spirits, distilled liquors, ale and beer are subjects of 
exchange, barter and traffic, like any other commodity in which a 
right of traffic exists, and are so recognized by the usages of the 
commercial world, the laws of Congress, and the decisions of courts, 
is not denied. Being thus articles of commerce, can a State, in the 
absence of legislation on the part of Congress, prohibit their im- 
portation from abroad or from a sister State, or when imported 
prohibit their sale by the importer? If the importation cannot be 
prohibited without the consent of Congress, when does property 
imported from abroad, or from a sister State, so become part of 
the common mass of property within a State as to be subject to its 
unimpeded control? 

In Brown v. Maryland, the act of the State legislature 
drawn in question was held invalid as repugnant to the prohibition 
of the Constitution upon the States to lay any impost or duty upon 



Selected Cases in Constitutional Law. 127 

imports or exports, and to the clause granting the power ta regulate 
commerce ; and it was laid down by the great magistrate who pre- 
sided over this court for more than a third of a century, that- the 
point of time when the prohibition ceases and the power of the State 
to tax commences is not the instant when the article enters the 
country, but when the importer has so acted upon it that it has be- 
come incorporated and mixed up with the mass of property in the 
country, which happens when the original package is no longer such 
in his hands ; that the distinction is obvious between a tax which 
intercepts the import as an import on its way to become incorporat- 
ed with the general mass of property, and a tax which finds the arti- 
cle already incorporated with that mass by the act of the importer ; 
that as to the power to regulate commerce, none of the evils which 
proceeded from the feebleness of the Federal Govrnmnt contrib- 
uted more to the great revolution which introduced the present sys- 
tem, than the deep and general conviction that commerce ought to 
be regulated by Congress ; that the grant should be as extensive as 
the mischief, and should comprehend all foreign commerce and all 
commerce among the States ; that that power was complete in itself, 
acknowledged no limitations other than those prescribed by the 
Constitution, was co-extensive with the subject on which it acts and 
not to be stopped at the external boundary of a State, but must be 
capable of entering its interior ; that the right to sell any aricle im- 
ported was an inseparable incident to the right to import it ; and 
that the principles expounded in the case applied equally to impor- 
tations from a sister State. Manifestly this must be so, for the 
same public policy applied to commerce among the States as to 
foreign commerce, and not a reason could be assigned for confiding 
the power over the one which did not conduce to establish the pro- 
priety of confiding the power over the other. Story, Constitution, 
§ 1066. And although the precise question before us was not ruled 
in Gibbons v. Ogden and Brown v. Maryland, yet we think it was 
virtually involved and answered, and that this is demonstrated, 
among other cases, in Bowman v. Chicago & Northwestern Railway 
Co., 125 U. S., 465. In the latter case, section 1553 of the Code of 
the State of Iowa as amended by c. 143 of the acts of the twentieth 
General Assembly in 1886, forbidding common carriers to bring 
intoxicating liquors into the State from any other State or Terri- 
tory, without first being furnished with a certificate as prescribed, 
was declared invalid, because essentially a regulation of commerce 
among the States, and not sanctioned by the authority, express or 
implied, of Congress. The opinion of the court, delivered by Mr. 
Justice Matthews, the concurring opinion of Mr. Justice Field, and 
the dissenting opinion by Mr. Justice Harlan, on behalf of Mr. 
Chief Justice Waite, Mr. Justice Gray, and himself, discussed the 
question involved in all its phases ; and while the determination of 
whether the right of transportation of an article of commerce from 
one State to another includes by necessary implication the right of 
the consignee to sell it in unbroken packages at the place where the 
transportation terminates was in terms reserved, yet the argument 



128 Selected Cases in Constitutional Law. 

of the majority conducts irresistibly to that conclusion, and we 
think we cannot do better than repeat the grounds upon which the 
decision was made to rest. It is there shown that the transportation 
of freight or of the subjects of commerce, for. the purpose of ex- 
change or sale, is beyond all question a constituent of commerce 
itself; that this was the prominent idea in the minds of the framers 
of the Constitution, when to Congress was committed the power 
to regulate commerce among the several States ; that the power to 
prevent embarrassing restrictions by any State was the end desir- 
ed ; that the power was given by the same words and in the same 
clause by which was conferred power to regulate commerce with 
foreign nations; and that it would be absurd to suppose that the 
transmission of the subjects of trade from the State of the buyer, 
or from the place of production to the market, was not contemplat- 
ed, for without that there could be no consummated trade, either 
with foreign nations or among the States. It is explained that 
where State laws alleged to be regulations of commerce among the 
States have been sustained, they were laws which related to bridges 
or dams across streams, wholly within the State, or police or health 
laws, or to subjects of a kindred nature, not strictly of commercial 
regulation. But the transportation of passengers or of merchandise 
from one State to another is in its nature national, admitting of 
but one regulating power ; and it was to guard against the possi- 
bility of commercial embarrassments which would result if one 
State could directly or indirectly tax persons or property passing 
through it, or prohibit particular property from entrance into the 
State, that the power of regulating commerce among the States was 
conferred upon the Federal Government. * * * * 

The doctrine now firmly established is, as stated by Mr. Justice 
Field, in Bowman v. Chicago, &c. Railway Co., 125 U. S., 507, ''that 
where the subject upon which Congress can act under its commer- 
cial power is local in its nature or sphere of operation, such as har- 
bor pilotage, the improvement of harbors, the establishment of bea- 
cons and buoys to guide vessels in and out of port, the construction 
of bridges over navigable rivers, the erection of wharves, piers and 
docks, and the like, which can be properly regulated only by special 
provisions adapted to their localities, the State can act until Con- 
gress interferes and supersedes its authority; but where the subject 
is national in its character, and admits and requires uniformity of 
regulation, affecting alike all the States, such as transportation be- 
tween the States, including the importation of goods from one 
State into another, Congress can alone act upon it and provide the 
needed regulations. The absence of any law of Congress on the 
subject is equivalent to its declaration that commerce in that matter 
shall be free. Thus the absence of regulations as to interstate com- 
merce with reference to any particular subject is taken as a declara- 
tion that the importation of that article into the States shall be un- 
restricted. It is only after the importation is completed and the 
property imported has mingled with and become a part of the gen- 
eral property of the State, that its regulations can act upon it. 



Selected Cases in Constitutional Law. 12$' 

except so far as may be necessary to insure safety in the disposition 
of the import until thus mingled." 

The conclusion follows that, as the grant of the power to regu- 
late commerce among the States, so far as one system is required, is 
exclusive, the States cannot exercise that power without the assent 
of Congress, and, in the absence of legislation, it is left for the 
courts to determine when State action does or does not amount to 
such exercise, or, in other words, what is or is not a regulation of 
such commerce. When that is determined, controversy is at an. 
end. * * * * 

These decisions rest upon the undoubted right of the States of the 
Union to control their purely internal affairs, in doing which they 
exercise powers not surrendered to the national government ; but, 
whenever the law of the State amounts essentially to a regulation 
of commerce with foreign nations or among the States, as it does 
when it inhibits, directly or indirectly, the receipt of an imported 
commodity or its disposition before it has ceased to become an arti- 
cle of trade between one State and another, or another country and! 
this, it comes in conflict with a power which, in this particular, has- 
been exclusively vested in the general government, and is therefore 
void. 

In Mugler v. Kansas, the court said that it could 
not "shut out of view the fact, within the knowledge of all, that 
the public health, the public morals and the public safety may be 
endangered by the general use of intoxicating drinks; nor the fact, 
established by statistics accessible to every one, that the idleness, 
disorder, pauperism and crime existing in the country are, in some 
degree at least, traceable to this evil." And that "if in the jud~ 
ment of the Legislature [of a State] the manufacture of intoxi- 
cating liquors for the maker's own use, as a beverage, would tend' 
to cripple, if it did not defeat, the effort to guard the community 
against the evils attending the excessive use of such liquors, it is 
not for the courts, upon their views as to what is best and safest for 
the community, to disregard the legislative determination of that 
question. * * * * Nor can it be said that government interferes with 
or impairs any one's constitutional rights of liberty or of property,, 
when it detei mines that the manufacture and sale of intoxicating 
drinks, for general or individual use, as a beverage, are, or may 
become, hurtful to society, and constitute, therefore, a business in 
which no one may lawfully engage." Undoubtedly, it is for the 
legislative branch of the State governments to determine whether 
the manufacture of particular articles of traffic, or the sale of such 
articles, will injuriously affect the public, and it is not for Congress 
to determine what measures a State may properly adopt as appro- 
priate or needful for the protection of the public morals, tlfe public 
health or the public safety ; but notwithstanding it is. not vested with 
supervisory power over matters of local administration, the re- 
sponsibility is upon Congress, so far as the regulation of interstate 
commerce is concerned, to remove the restriction upon the State in 
dealing with imported articles of trade within its limits, which have 



130 Selected Cases in Constitutional Law. 

not been mingled with the common mass of property therein, if in 
its judgment the end to be secured justifies and requires such action. 

* * * * 

The plaintiffs in error are citizens of Illinois, are not pharmacists, 
and have no permit, but import into Iowa beer, which they sell in 
original packages, as described. Under our decision in Bowman v. 
Chicago, &c. Railway Co., they had the right to import this 
beer into that State, and in the view which we have expressed they 
had the right to sell it, by which act alone it would become mingled 
in the common mass of property within the State. Up to that point 
of time, we hold that in the absence of congressional permission to 
do so, the State had no power to interfere by seizure, or any other 
action, in prohibition of importation and sale by the foreign or non- 
resident importer. Whatever our individual views may be as to the 
deleterious or dangerous qualities of particular articles, we cannot 
hold that any articles which Congress recognizes as subjects of in- 
terstate commerce are not such, or that whatever are thus recog- 
nized can be controlled by State laws amounting to regulations, 
while they retain that character ; although, at the same time, if 
directly dangerous in themselves, the State may take appropriate 
measures to guard against injury before it obtains complete juris- 
diction over them. To concede to a State the power to exclude, 
directly or indirectly, articles so situated, without congressional per- 
mission, is to concede to a majority of the people of a State, repre- 
sented in the State legislature, the power to regulate commercial 
intercourse between the States, by determining what shall be its 
subjects, when that power was distinctly granted to be exercised 
by the people of the United States, represented in Congress, and 
its possession by the latter was considered essential to that more 
perfect Union which the Constitution was adopted to create. Un- 
doubtedly, there is difficulty in drawing the line between the muni- 
cipal powers of the one government and the commercial powers 
of the other, but when that line is determined, in the particular in- 
stance, accommodation to it, without serious inconvenience, may 
readily be found, to use the language of Mr. Justice Johnson, in 
Gibbons v. Ogden, 9 Wheat. 1, 238, in "a frank and candid co-op- 
eration for the general good." 

The legislation in question is to the extent indicated repugnant 
to the third clause of section 8 of Art 1 of the Consitution of the 
United States, and therefore the judgment of the Supreme Court of 
Iowa is 

Reversed and the cause remanded for further proceedings 
not inconsistent with this opinion. 



AUSTIN v. TENNESSEE. 
179 U. S., 343- 1900. 

The State of Tennessee forbade the sale of cigarettes within the 
State under the following act of 1897, "It shall be a misdemeanor 



Selected Cases in Constitutional Law. 131 

for any person, firm or corporation to sell, offer to sell, or bring 
into the State for the purpose of selling, giving away or otherwise 
disposing of any cigarettes, cigarette paper, or substitute for the 
same." * * * * 

Austin was convicted of a violation of the statute and commit- 
ted to jail until payment of a fine. The facts of the case showed 
that the defendant had purchased a lot of cigarettes from the 
American Tobacco Company, in Durham, North Carolina, where 
the same had been manufactured and put into pasteboard boxes 
containing ten cigarettes each, properly marked, stamped and label- 
ed as prescribed by the United States revenue laws. That after 
the purchase, the American Tobacco Company piled upon the floor 
of its warehouse, in Durham, the number of boxes or packages sold 
and notified the Southern Express Company to come and get them. 
The express company placed them in an open basket and delivered 
them to the defendant in Tennessee. The defendant sold one of 
the packages of ten cigarettes without breaking it. The Supreme 
Court of Tennessee upheld the conviction on the ground that (i) 
Cigarettes were not legitimate articles of commerce. (2) The pack- 
ages in which the cigarettes were sold were not original packages 
in the true commercial sense. Appeal to the Supreme Court of the 
United States. 

Mr. Justice Brown delivered the opinion of the court: — 
It is charged that the act in question, in its application to the 
facts of the case, is an infringement upon the exclusive powder of 
Congress to regulate commerce between the States. This is the sole 
question presented for our determination. We are not disposed to 
question the general principle that the States cannot, under the 
guise of inspection or revenue laws, forbid or impede the introduc- 
tion of products, and more particularly of food products, univer- 
sally recognized as harmless, or otherwise burden foreign or inter- 
state commerce by regulations adopted under the assumed police 
power of the State, but obviously for the purpose of taxing such 
•commerce or creating discriminations in favor of home producers 
or manufacturers. We are not prepared to fully indorse the opin- 
ion of the court, upon the first point. Whatever product has from 
time immemorial been recognized by custom or law as a fit sub- 
ject for barter or sale, particularly if its manufacture has been made 
the subject of Federal regulation and taxation, must, we think, be 
recognized as a legitimate article of commerce although it may to 
a certain extent be within the police power of the States. Of this 
class of cases is tobacco. From the first settlement of the colony 
of Virginia to the present day tobacco has been one of the most 
profitable and important products of agriculture and commerce, and 
while its effects may be injurious to some, its extensive use over 
practically the entire globe is a remarkable tribute to its popularity 
and value. We are clearly of opinion that it cannot be classed with 
diseased cattle or meats, decayed fruit or other articles, the use of 
which is a menace to the health of the entire community * * * there 
is no reason to doubt the good faith of the legislature of Tennessee 



132 Selected Cases in Constitutional Law. 

in prohibiting the sale of cigarettes as a sanitary measure, and if 
it be inoperative as applied to sales by the owner in the original 
packages, of cigarettes manufactured in and brought from another 
State, we are remitted to the inquiry whether a paper package of 
three inches in length and one and one-half inches in width, con- 
taining ten cigarettes is an original package protected by the Con- 
stitution of the United States against any interference by the State 
while in the hands of the importer? The real question in this case 
is whether the size of the package in which the importation is ac- 
tually made is to govern ; or, the size of the package in which bona- 
fide transactions are carried on between the manufacturer and the 
wholesale dealer residing in different States. We hold to the latter 
view. The whole theory of the exemption of the original! package 
from the operation of State laws is based upon the idea that the 
property is imported in the ordinary form in which, from time, to 
time immemorial, foreign goods have been brought into the coun- 
try.* * * And yet we are told that each one of these packages is an 
original package, and entitled to the protection of the Constitution 
of the United States as a separate and distinct importation. We 
can only look upon it as a discreditable subterfuge, to which this 
court ought not to lend its countenance. If there be any original 
package at all in this case, we think it is the basket and not the pa- 
per box. We are satisfied the conclusion of the Supreme Court of 
Tennessee correct and it is therefore Affirmed. 



SCHQLLENBERGER v. PENNSYLVANIA. 

171 U. S., 1. 1898. 

Schollenberger with others was convicted of a violation of a 
statute of Pennsylvania, Act May 21, 1885, which prohibited the 
sale of oleomargarine. From the evidence it appeared that Schol- 
lenberger was the agent in Pennsylvania for the sale of the prod- 
duct on behalf of a manufacturer in Rhode Island. Also, the man- 
ufacturer and agent, had complied with the provisions of the act 
of Congress of August 2, 1886, imposing a tax upon the business. 
A tub containing forty pounds of oleomarmargarine, packed, stamped 
and branded as required by the act of Congress was snipped to> 
Schollenberger from Rhode Island, who sold the same to a pur- 
chaser, as an article of food. The Supreme Court of Pennsylvania 
upheld the constitutionality of the statute on the ground that it 
was a legitimate exercise of the police power of the State in protect- 
ing the health of its citizens ; also, that the statute did not prevent 
oleomargarine being brought within-the state and sold to the whole- 
sale dealer ir: original packages, but affected only its retail sale. 
An appeal was taken to the Supreme Court of the United States, 

Mr. Justice Peckham delivered the opinion : 
In the examination of this subject the first question to be 
considered is whether oleomargarine is an article of commerce? No* 



Selected Cases in Constitutional Law. 133 

•affirmative evidence from witnesses called to the stand and speaking 
directly to that subject is found in the record. We must determine 
the question with reference to those facts which are so well and 
universally known that courts will take notice of them without par- 
ticular proof being adduced in regard to them, and also by refer- 
ence to those dealings of the commercial world which are of like 
notoriety. 

Any legislation of Congress upon the subject must, of course, be 
regarded by this court as a fact of the first importance. If Congress 
(has affirmatively pronounced the article to be a proper subject of 
commerce, we should rightly be influenced by 'that declaration. By 
reference to the statutes we discover that Congress in 1886 passed 
"An act defining butter, also imposing a tax upon and regulating the 
manufacture, sale, importation and exportation of oleomargarine." 
Act of August 2, 1886, c. 840, 24 Stat. 2019, In that statute we find 
that Congress has given a definition of the meaning of oleomar- 
garine and has imposed a special tax on the manufacturers of the ar- 
ticle, on wholesale dealers, and upon retail dealers therein and the 
provisions of the Revised Statutes in relation to special taxes are, 
so far as applicable, made to extend to the special taxes imposed 
by the third section of the act, and to the persons upon whom; they 
are imposed. Manufacturers are required to file with the proper 
collector of internal revenue such notices, and keep such books and 
conduct their business under such supervision as the Commissioner 
of Internal Revenue, with the approval of the Secretary of the 
Treasury, may by regulation require. Provision is made for the 
packing of oleomargarine by the manufacturer in packages contain- 
ing not less than ten pounds and marked as prescribed in the act, 
and it provides that all sales made by manufacturers of oleomar- 
garine and wholesale dealers in oleomargarine shall be in the orig- 
inal stamped packages. A tax of two cents per pound is laid upon 
oleomargarine, to be paid by the manufacturer, and the tax levied 
is to be represented by coupon stamps. Oleomargarine imported 
from foreign countries is taxed, in addition to the import duty im- 
posed on the same, an internal revenue tax of fifteen cents per 
pound. Provision is made for warehousing, and a penalty imposed 
for selling the oleomargarine thus imported if not properly stamped. 
Provision is also made for the appointment of an analytical chem- 
ist and microscopist by the Secretary of the Treasury, and such 
chemist or microscopist may examine the different substances which 
may be submitted in contested cases, and the Commissioner of In- 
ternal Revenue is to decide in such cases as to the taxation, and his 
decision is to be final. * * * * 

This act shows that Congress at the time of its passage in 
1886 recognized the article as a proper subject of taxation and_ as 
one which was the subject of traffic and of exportation to foreign 
countries and of importation from such countries. Its manufacture 
was recognized as a lawful pursuit, and taxation was levied upon 
the manufacturer of the article, upon the wholesale and retail deal- 
ers therein, and also upon the article itself. * * * * 



134 Selected Cases in Constitutional Law. 

Upon all these facts we think it apparent that oleomargarine has 
become a proper subject of commerce among the States and with 
foreign nations. 

The general rule to be deduced: from the decisions of this court 
is that a lawful article of commerce cannot be wholly excluded from 
importation into a State from another State where it was manufac- 
tured or grown. A State has power to regulate the introduction of 
any article, including a food product, so as to insure purity of the 
article imported, but such police power does not include the total 
exclusion even of an article of food. * * * * 

We do not think trie fact that the article is subject to be adulter- 
ated by dishonest persons, in the course of its manufacture, with 
other substances, which it is claimed may in some instances become 
deleterious to health, creates the right in any State through its legis- 
lature to forbid the introduction of the unadulterated article into the 
State. The fact that the article is liable to adulteration in the 
course of manufacture, and that the articles with which it may be 
mixed may possibly and under some circumstances be deleterious to 
the health of those who consume it, is known to us by means of 
various references to the subject in books and encyclopaedias, but 
there was no affirmative evidence offered on the trial to prove the 
fact. From these sources of information it may be admitted that 
oleomargarine in the course of its manufacture may sometimes be 
adulterated by dishonest manufacturers with articles that possibly 
may become injurious to health. Conceding the fact, we yet deny 
the right of a State to absolutely prohibit the introduction within its 
borders of an article of commerce, which is not adulaterated and 
which in its pure state is healthful, simply because such an article 
in the course of its manufacture may be adulterated by dishonest 
manufacturers for purposes of fraud or illegal gains. The bad ar- 
ticle may be prohibited, hut not the pure and healthy one. * * * * 

We are not aware of any such distinction as is attempted to be 
drawn by the court below in these cases between a sale at wholesale 
to individuals engaged in the wholesale trade or one at retail to the 
consumer. How small may be an original package it is not neces- 
sary to here determine. We do say that a sale of a ten pound pack- 
age of oleomargarine, manufactured, packed, marked, imported and 
sold under the circumstances set forth in detail in the special ver- 
dict, was a valid sale, although to a person who was himself a con- 
sumer. We do not say or intimate that this right of sale extended 
beyond the first sale by the importer after its arrival within the 
State. Waring v. The Mayor, 8 Wall, no, 122. The importer 
had the right to sell not only personally, but he had the right to 
employ an agent to sell for him. Otherwise his right to sell would 
be substantially valueless, for it cannot be supposed that he would 
be personally engaged in the sale of every original package sent to 
the different States in the Union. Having the right to sell through 
his agent, a sale thus effected is valid. 

The right of the importer to sell cannot depend upon whether the 
original package is suitable for retail trade or not. His right to 



Selected Cases in Constitutional Law. 135 

sell is the same, whether to consumers or to wholesale dealers in 
the article, provided he sells them in original packages. This does 
not interfere with the acknowledged right of the State to use such 
means as may be necessary to prevent the introduction of an 
adulterated article, and for that purpose to inspect and test the 
article introduced, provided the State law does really inspect and 
does not substantially prohibit the introduction of the pure article 
and thereby interfere with interstate commerce. It cannot for the 
purpose of preventing the introduction of an impure or adulterated 
article absolutely prohibit the introduction of that which is pure and 
wholesome. The act of the Legislature of Pennsylvania, under 
consideration, to the extent that it prohibits the introduction of 
oleomargarine from another State and its sale in the original pack- 
age, as described in the special verdict, is invalid. 

The pigments are therefore reversed and the cases remanded 
to the Supreme Court of Pennsylvania for further proceed- 
ings not inconsistent with this opinion. 



MINNESOTA v. BARBER. 
136 U. S., 3x3V 1890. 

Henry E. Barber was convicted of the offense of offering meat 
for sale in Minnesota in violation of a statute of the State passed 
April 16, 1889. The act of 1889 was entitled "An act for the pro- 
tection of the public health by providing for inspection, before 
slaughter, of cattle, sheep and swine designed for slaughter for 
human food." By the third section of the act it was declared to< 
be the duty of the inspectors appointed under the act to inspect all 
cattle, sheep and swine slaughtered for human food within their 
respective jurisdictions within twenty-four hours before the slaugh- 
ter of the same, and if found healthy and in suitable condition to 
be slaughtered for human food to give to the applicant a certificate 
in writing to that effect. If found unfit for food, such inspectors 
were to order the immediate removal and destruction of such dis- 
eased animals. The fourth section made it a misdemeanor punish- 
able by fine and imprisonment to expose or offer for sale any meat 
which had not been taken from an animal so inspected and certified 
before slaughter. Barber sued out a writ of habeas corpus to be 
released from jail in the Circuit Court of the United States for the 
District of Minnesota upon the ground that the act of 1889 was re- 
pugnant to the provision of the Constitution giving Congress pow- 
er to regulate commerce among the several States. The Circuit 
Court held the statute to be in violation of the Constitution and 
discharged the prisoner from custody. The State then appealed'to 
the United States Supreme Court. 

Mr. Justice Harlan delivered the opinion of the court. 

As the inspection must take place within the twenty-four hours 
immediatelv before the slaughtering, the act, by its necessary oper- 



$36 Selected Cases in Constitutional Law. 

ation, excludes from the Minnesota market, practically, all fresh 
"feeef, veal, mutton, lamb or pork — in whatever form, and although 
entirely sound, healthy, and fit for human food — taken from ani- 
mals slaughtered in other States ; and directly tends to restrict the 
slaughtering of animals, whose meat is to be sold in Minnesota for 
liuman food, to those engaged in such business in that State. This 
must be so, because the time, expense and labor of sending animals 
from points outside of Minnesota to points in that State to be there 
inspected, and bringing them back, after inspection to be slaughter- 
ed at the place from which they were sent — the slaughtering to 
take place within twenty-four hours after inspection, else the cer- 
tificate of inspection becomes of no value — will be so great as to 
amount to an absolute prohibition upon sales in Minnesota, of meat 
from animals not slaughtered within its limits. When to this is 
added the fad that the statute, by its necessary operation, prohibits 
the sale, in the State, of fresh beef, veal, mutton, lamb or pork, 
from animals that may have been inspected carefully and thorough- 
ly in the State where they were slaughtered, and before they were 
slaughtered, nc doubt can remain as to its effect upon commerce 
:among the several States. It will not do to say — certainly no ju- 
dicial tribunal can, with propriety, assume — that the people of Min- 
nesota may not, with due regard to their health, rely upon inspec- 
tions in other States of animals there slaughtered for purposes of 
liuman food. If the object of the statute had been to deny alto- 
gether to the citizens of other States the privilege of selling, with- 
in the limits of Minnesota, for human food, any fresh beef, veal, 
mutton, lamb or pork, from animals slaughtered outside of that 
State and to compel the people of Minnesota wishing! to buy such 
meats, either to purchase those taken from animals slaughtered in 
the State, or to incur the cost of purchasing them, when desired 
for their own personal use, at points beyond the State, that object 
is attained by the act in question. Our duty to maintain the Con- 
stitution will not permit us to shut our eyes to these obvious and 
necessary results of the Minnesota statute. If this legislation does 
not make such discrimination against the products and business of 
other States in favor of the products and business of Minnesota 
as interferes with and burdens commerce among the several States, 
it would be difficult to enact legislation that would have that re- 
sult. * * * * 

A law providing for the inspection of animals whose meats are 
'designed for human food cannot be regarded as a rightful exer- 
liion of the police powers of the State, if the inspection prescribed 
Is of such a character, or is burdened with such conditions, as will 
prevent altogether the introduction into the State of sound meats, 
the products of animals slaughtered in other States. It is one thing 
for a Sate to exclude from its limits cattle, sheep or swine, actually 
diseased, or meats that by reason of their condition, or the condition 
*>f the animal from which they are taken, are unfit for human 
food, and punish all sales of such animals or of such meats with- 
in its limits. It is quite a different thing for a State to declare 



Selected Cases in Constitutional Law. 137 

as does Minnesota by the necessary operation of its statute that 
fresh beef, veal, mutton, lamb or pork — articles that are used in 
every part of this country to support human life — shall not be 
sold for human food within its limits, unless the animal from 
which such meats are taken is inspected in that State, or, as is 
practically said, unless the animal is slaughtered in that State. 

In the opinion of the court the statute in question * * * is 
in violation of the Constitution and void. 

Judgment discharging the appealee (Barber) from custody is 
affirmed. 



SECTION III. 

Bills of Credit. 

BRISCOE v. BANK OF KENTUCKY. 

ii Peters, 257. 1837. 

This was an action brought by the Bank of the Commonwealth of 
Kentucky against Briscoe and other persons upon a promissory note 
of $2,048.37, payable to the president and directors of the bank, 
On November 29, 1820, the legislature of Kentucky passed an act 
establishing the bank "in the name and on behalf of the Common- 
wealth of Kentucky" and declared it to be exclusively the property 
of the Commonwealth. A section of the bank's charter authorized it 
to issue notes to the amount of three million dollars. Briscoe defend- 
ed to the suit on the ground that the promissory note had been given 
in return for the notes of the bank, which latter notes were void, as 
they were "bills of credit" issued by the State of Kentucky, in viola- 
tion of the provisions of the Consitution of the United States, which 
prohibited a State from issuing bills of credit. Furthermore, he 
claimed that the act establishing the bank was unconstitutional and 
void. Therefore, since the consideration for the promissory note 
was illegal, there could be no recovery upon it. The Circuit Court 
of Mercer County, Kentucky, gave judgment in favor of the bank, 
which was affirmed by the Court of Appeals, the highest court in 
Kentucky. An appeal was then taken to the Supreme Court of the 
United States. 

Mr. Justice M'Lean delivered the opinion of the court. 

The terms "bills of credit," in their mercantile sense, comprehend 
a great variety of evidences of debt, which circulate in a commercial 
country. In the early history of banks it seems their notes were 
generally denominated bills of credit; but in modern times they 
have lost that designation, and are now called either bank-bills, or 
bank-notes. 

But the inhibition of the Constitution applies to bills of credit, in 
a more limited sense. 

It would be difficult to classifv the bills of credit which were is- 



138 Selected Cases in Constitutional Law. 

sued in the early history of this country. They were all designed 
to circulate as money, being- issued under the laws of the respective 
colonies ; but the forms were various in the different colonies, and 
often in the same colony. 

In some cases they were payable with interest, in others without 
interest. Funds arising from certain sources of taxation were pledg- 
ed for their redemption, in some instances ; in others they were is- 
sued without such a pledge. They were sometimes made a legal 
tender; at others, not. In some instances a refusal to receive them 
operated as a discharge of the debt ; in others, a postponement of it. 

They were sometimes payable on demand ; at other times, at some 
future period. At all times the bills were receivable for taxes, and 
in payment of debts due to the public, except, perhaps, in some in- 
stances, where they had become so depreciated as to be of little or no 
value. 

These bills were frequently issued by committees, and sometimes 
by an officer of the government, or an individual designated for that 
purpose. 

The bills of credit emitted by the States during the Revolution, 
and prior to the adoption of the Consitution, were not very dissim- 
ilar from those which the colonies had been in the practice of issuing. 
There were some characteristics which were common to all these 
bills. They were issued by the colony or State, and on its credit. 
For in cases where funds were pledged, the bills were to be redeemed 
at a future period, and gradually as the means of redemption should 
accumulate. In some instances, Congress guaranteed the payment 
of bills emitted by a State. 

They were, perhaps, never convertible into gold and silver, imme- 
diately on their emission ; as they were issued to supply the pressing 
pecuniary wants of the government, their circulating as money was 
indispensable. The necessity which required their emission pre- 
cluded the possibility of their immediate redemption. 

In the case of Craig et al. v. The State of Missouri, 4 Pet. 410, 
this court was called upon, for the first time, to determine what con- 
stituted a bill of credit, within the meaning of the Constitution. A 
majority of the judges in that case, in the language of the Chief 
Justice, say, that "bills of credit signify a paper medium, intended 
to circulate between individuals, and between government and indi- 
viduals, for the ordinary purposes of society." 

A definition so general as this would certainly embrace every de- 
scription of paper which circulates as money. 

Two of the dissenting judges, on that occasion, gave a more defi- 
nite, though, perhaps, a less accurate meaning, of the terms "bills of 
credit." 

By one of them it was said, "a bill of credit may, therefore, be con- 
sidered a bill drawn and resting' merely on the credit of the drawer, 
as contradistinguished from a fund constituted or pledged for the 
payment of the bill." And in the opinion of the other, it is said, "to 
constitute a bill of credit, within the meaning of the Constitution, it 
must be issued by a State, and its circulation as money, enforced by 



Selected Cases in Constitutional Law. 13$ 

statutory provisions. It must contain a promise of payment by the 
State generally, when no fund has been appropriated to enable the 
holder to convert it into money. It must be circulated on the credit 
of the State ; not that it will be paid on presentation, but that the State, 
at some future period, on a time fixed or resting 1 in its own discre- 
tion, will provide for the payment." 

These definitions cover a large class of the bills of credit issued 
and circulated as money, but there are classes which they do not 
embrace, and it is believed that no definition, short of a descrip- 
tion of each class, would be entirely free from objection; unless it 
be in the general terms used by the venerable and lamented Chief 
Justice. 

The definition, then, which does include all classes of bills of credit 
emitted by the colonies or States, is a paper issued by the sovereign 
power, containing a pledge of its faith, and designed to circulate as 
money. 

Having arrived at this point, the next inquiry in the case is, 
whether the notes of the Bank of Commonwealth were bills of credit 
within the meaning of the Constitution. * * * * 

A State cannot do that which the Federal Constitution declares it 
shall not do. It cannot coin money. Here is an act inhibited in 
terms so precise that they cannot be mistaken. They are susceptible 
of but one construction. And it is certain that a State cannot incor- 
porate any number of individuals, and authorize them to coin money. 
Such an act would be as much a violation of the Constitution as if 
the money were coined by an officer of the State, under its authority. 
The act being prohibited cannot be done by a State, either directly 
or indirectly. 

And the same rule applies as to the emission of bills of credit by a 
State. The terms used here are less specific than those which relate 
to coinage. Whilst no one can mistake the latter, there are great 
differences of opinion as to the construction of the former. If the 
terms in each case were equally definite, and were susceptible of but 
one construction, there could be no more difficulty in applying the 
rule in the one case than in the other. 

The weight of the argument is admitted, that a State cannot, by 
any device that may be adopted, emit bills of credit. But the ques- 
tion arises, what is a bill of credit within the meaning of the Consti- 
tution ? On the answer of this must depend the constitutionality or 
unconsitutionality of the act in question. 

A State can act only through its agents ; and it would be absurd 
to say that any act was not done by a State, which was done by its 
authorized agents. 

To constitute a bill of credit within the Constitution it must be 
issued by a State, on the faith of the State, and be designed to cir- 
culate as money. It must be a paper which circulates on the credit of 
the State ; and is so received and used in the ordinarv business of 
life. 

The individual or committee who issue the bill must have the 
power to bind the State; they must act as agents, and, of course, do 



140 Selected Cases in Constitutional Law. 

not incur any personal responsibility,- nor impart, as individuals, any 
credit to the paper. These are the leading characteristics of a bill 
of credit which a State cannot emit. Were the notes of the Bank of 
the Commonwealth bills of credit issued by the State? 

The president and directors of the bank were incorporated, and 
vested with all the powers usually given to banking institutions. 
They were authorized to make loans on personal security, and on 
mortgages of real estate. Provisions were made, and regulations, 
common to all banks ; but there are other parts of the charter which, 
it is contended, show that the president and directors acted merely 
as agents of the State. 

In the preamble of the act it is declared to be "expedient and 
beneficial to the State, and the citizens thereof, to establish a bank 
on the funds of the State, for the purpose of discounting paper, and 
making loans for longer periods than has been customary, and for the 
relief of the distresses of the community." 

The president and directors were elected by the legislature. The 
capital of the bank belonged to the State, and it received the divi- 
dends. 

These and other parts of the charter, it is argued, show that the 
bank was a mere instrument of the State to issue bills ; and that, if 
by such a device the provision of the Constitution may be evaded, it 
must become a nullity. 

That there is much plausibility and some force in this argument 
cannot be denied ; and it would be in vain to assert that on this head 
the case is clear of difficulty. * . * * 
Were these notes issued by the State? 

Upon their face they do not purport to be issued by the State, but 
by the president and directors of the bank. They promise to pay to 
bearer on demand the sums stated. 

Were they issued on the faith of the State? 

The notes contain no pledge of the faith of the State in any form. 
They purport to have been issued on the credit of the funds of the 
bank, and must have been so received in the community. 

But these funds, it is said, belonged to the State ; and the promise 
to pay on the face of the notes was made by the president and di- 
rectors as agents of the State. 

They do not assume to act as agents, and there is no law which 
authorized them to bind the State. As in, perhaps, all bank charters, 
they had the power to issue a certain amount of notes ; but they 
determined the time and circumstances which should regulate these 
issues. 

When a State emits bills of credit the amount to be issued is fixed 
by law, as also the fund out of which they are to be paid, if any fund 
be pledged for their redemption ; and they are issued on the credit 
of the State, which, in some form, appears upon the face of the notes, 
or by the signature of the person who issues them. 

As to the funds of the Bank of the Commonwealth, they were, in 
part only, derived from the State. The capital, it is true, was to be 
paid by the State ; but in making loans the bank was required to 



Selected Cases in Constitutional Law. 141 

take g-ood securities, and these constituted a fund to which the hold- 
ers of the notes could look for payment, and which could be made 
legally responsible. 

In this respect the notes of this bank were essentially different 
from any class of bills of credit, which are believed to have been 
issued. * * * * 

But there is another quality which distinguished these notes from 
bills of credit. Every holder of them could not only look to the funds 
of the bank for payment, but he had in his power the means of en- 
forcing it. 

The bank could be sued ; and the records of this court show that 
while its paper was depreciated, a suit was prosecuted to judgment 
against it by a depositor, and who obtained from the bank, it is ad- 
mitted, the full amount of his judgment in specie. 

What means of enforcing payment from the State has the holder 
of a bill of credit. It is said by the counsel for the plaintiffs that he 
could have sued the State. But was a State liable to be sued ? 

In the case of Chisholm's Executor v. The State of Georgia, in 
1792, 2 Dal. 419, it was decided that a State could be sued before 
this court, and this led to the adoption of the amendment of the Con- 
stitution on this subject. But the bills of credit which were emitted 
prior to the Constitution are those that show the mischief against 
which the inhibition was intended to operate. And we must look to 
that period, as of necessity we have done, for the definition and char- 
acter of a bill of credit. No sovereign State is liable to be sued 
without her consent. * * * It is believed that there is no case where a 
suit has been brought at any time on bills of credit against a State, 
and it is certain that no suit could have been maintained on this 
ground prior to the Constitution. In the case of the Bank of the 
Commonwealth of Kentucky v. Wistar and others, 3 Pet. 431, the 
question was raised whether a suit could be maintained against the 
bank, on the ground that it was substantially a suit against the State. 

The agents of the defendants deposited a large sum in the bank ; 
and when the deposit was demanded, the bank offered to pay the 
amount in its own notes, which were at a discount. The notes were 
refused, and a suit was commenced on the certificate of deposit. 

A judgment being entered against the bank, in the Circuit Court 
of Kentucky, a writ of eror was brought to this court. In the court 
below the defendant pleaded to the jurisdiction, on the ground that 
the State of Kentucky alone was the proprietor of the stock of the 
bank ; for which reason it was insisted that the suit was virtually 
against a sovereign State. 

Mr. Justice Johnson, in giving the opinion of the court, after copy- 
ing the language used in the case above quoted, says : "If a State 
did exercise any other power in or over a bank, or impart to it its 
sovereign attributes, it would be hardly possible to distinguish the 
issue of the paper of such banks from a direct issue of bills of credit ;. 
which violation of the Constitution, no doubt, the State here intend- 
ed to avoid." 



142 Selected Cases in Constitutional Law. 

Can language be more explicit and more appropriate than this, to 
the points under consideration? * * * * 

If these positions be correct, is there not an end to this contro- 
versy? If the Bank of the Commonwealth is not the State, nor the 
agent of the State ; if it possesses no more power than is given to it 
in the act of incorporation and precisely the same as if the stock 
were owned by private individuals, — how can it be contended that 
the notes of the bank can be called bills of credit, in contradistinction 
from the notes of other banks ? 

If, in becoming an exclusive stockholder in this bank, the State 
imparts to it none of its attributes of sovereignty ; if it holds the 
>tock as any other stockholder would hold it, — how can it be said 
to emit bills of credit? Is it not essential, to constitute a bill of 
credit within the Constitution, that it should be emitted by a State ? 
Under its charter the bank has no power to emit bills which have 
the impress of the sovereignty, or which contain a pledge of its faith. 
It is a simple corporation, acting within the sphere of its corporate 
powers, and can no more transcend them than any other banking 
institution. The State, as a stockholder, bears the same relation to 
the bank as any other stockholder. 

The funds of the bank, and its property of every description, are 
held responsible for the payment of its debts ; and may be reached 
by legal or equitable process. In this respect it can claim no exemp- 
tion under the prerogatives of the State. 

And if, in the course of its operations, its notes have depreciated 
like the notes of other banks, under the pressure of circumstances, 
still, it must stand or fall by its charter. In this its powers are de- 
fined, and its rights, and the rights of those who give credit to it, 
are guaranteed. And even an abuse of its powers, through which 
its credit has been impaired and the community injured, cannot be 
considered in this case. 

We are of the opinion that the act incorporating the Bank of the 
Commonwealth was a constitutional exercise of power by the State 
of Kentucky ; and, consequently, that the notes issued by the bank 
are not bills of credit, within the meaning of the Federal Constitu- 
tion. The judgment of the court of appeals is therefore affirmed, 
with interests and costs. 

Note. The case of Briscoe v. Bank has been inserted because it 
contains an excellent explanation of the meaning of "bills of credit" 
from the standpoint of constitutional law. The Constitution ex- 
pressly prohibits the States from emitting such bills. There is no 
express prohibition in the Constitution upon the power of Congress 
to emit bills of credit, and while the power to emit them is not in 
express terms given, still the Supreme Court has held that Congress 
does possess the implied power to emit bills of credit. See Veazie 
Bank v. Fenno, page 57, and Legal Tender Cases, page 143. 



Selected Cases in Constitutional Law. 143 

SECTION IV. 

Power of Congress Over the Currency. 

The Legal Tender Cases. 

HEPBURN v. GRISWOLD. 

8 Wallace, 603. 1! 



In this case a certain Mrs. Hepburn made a promissory note, 
dated June 20, i860, by which she promised to pay to one Henry 
Griswold on February 20, 1862, the sum of $11,250. There was at 
the time the note was made, and at the time it fell due no lawful 
money of the United States but gold and silver coin. The note was 
not paid at maturity, and on February 25, 1862, in a crisis of the 
nation, Congress authorized the issue of $150,000,000 of its own 
notes and enacted in regards to them "Such notes *«* .* shall also be 
lawful money and a legal tender in payment of all debts, public and 
private, within the United States, except duties on imports, etc." 
These notes were issued on the credit of the United States alone. 
In March, 1864, suit was brought upon the note, Mrs. Hepburn 
tendered the United States notes issued under the act in satisfaction 
and payment of Gris wold's claim. The tender was refused, and 
the money paid into court. On appeal from the State courts, the 
cause was brought into the United States Supreme Court. 

Chief Justice Chase delivered the opinion of the court : 

Applying the rule just stated (i. c, that statutes shall be con- 
strued so as not to be unjust and inequitable, if another sense, con- 
sonant with those principles can be given to them), there appears 
to be strong reason for construing the word "debts" as having ref- 
erence only to debts contracted subsequent to the enactment of the 
law. For no one will question that the United States notes, which 
the act makes a legal tender in payment, are essentially unlike in 
nature, and being irredeemable in coin, are necessarily unlike in 
value, to the lawful money intended by parties to contracts for the 
payment of money made before its passage. * * * Contracts for the 
payment of money, made before the act of 1862, had reference to 
coined money, and could not be discharged, unless by consent, oth- 
erwise than by tender of the sum due in coin. Every such contract, 
therefore, was in legal import, a contract for the payment of coin. 
(The court discusses the question whether Congress has power to 
make notes issued under its authority a legal tender in payment of 
debts, which, when contracted, were payable in gold and silver coin, 
and concludes the opinion as follows:) * * * We are obliged to con- 
clude that an act making mere promises to pay dollars a legal tender 
in payment of debts previously contracted, is not a means appropri- 
ate, plainly adapted, really calculated to carry into effect any express 
power vested in Congress ; that such an act is inconsistent with the 
spirit of the Constitution ; and that it is prohibited by the Constitu- 
tion. We are obliged, therefore, to hold that the defendant (Gris- 
wold) was not bound to receive from the plaintiff the currency ten- 



144 Selected Cases in Constitutional Law, 

dered to him in payment of the nafte, made before the passage of 
the act of February 25, 1862. 



LEGAL TENDER CASE. 

JUILLIARD v. GREENMAN. 

I IO U. Si, 421. 1883. 

Julliard, a citizen of New York, brought suit against Greenman, 
a citizen of Connecticut, to recover the sum of $5,122.90 in payment 
of one hundred bales of cotton sold and delivered to Greenman, who 
admitted the purchase and delivery of the cotton, and the agreement 
to pay for them. He further stated that he had offered and tendered 
to the plaintiff, in payment of the debt, $22.50 in United States gold 
coin, forty cents in silver coin, and two United States notes, one of 
the denomination of $5,000, and the other of the denomination of 
$100. The two notes were known as United States legal tender 
notes. These notes were originally issued under the acts of Con- 
gress of 1862 and 1863, and reissued and kept in circulation under 
the act of Congress of May 31, 1878. The plaintiff had refused 
to take the notes, and contended that the defence was insufficient in 
law. The Circuit Court in New York gave judgment for the de- 
fendant. Appeal to the Supreme Court of the United States. 

Mr. Justice Gray delivered the opinion of the court. 

"The notes of the United States, tendered in payment of the de- 
fendant's debt to the plaintiff, were originally issued under the acts 
of Congress of February 25, 1862, eh. 33, July 11, 1862, ch. 142, 
and March 3, 1863, ch. 73, passed during the War of the Rebellion, 
and enacting that these notes should "be lawful money and a legal 
tender in payment of all debts, public and private, within the United 
States," except for duties on imports and interest on the public debt. 
12 Stat. 345, 532, 709. * * * * 

The act of May 31, 1878, ch. 146, under which the notes in ques- 
tion were reissued, is entitled "An Act to forbid the further retire- 
ment of United States legal tender notes," and enacts as follows : — 

"From and after the passage of this act it shall not be lawful for 
the Secretary of the Treasury or other officer under him to cancel 
or retire any more of the United States legal tender notes. And 
when any of said notes may be redeemed or be received into the 
Treasury under any law from any source whatever and shall be- 
long to the United States, they shall not be retired, cancelled, or de- 
stroyed, but they shall be reissued and paid out again and kept in 
circulation : Provided, That nothing herein shall prohibit the can- 
cellation and destruction of mutilated notes and the issue of other 
notes of like denomination in their stead, as now provided by law. 
All acts and parts of acts in conflict herewith are hereby repealed." 
20 Stat. 87. 

The manifest intention of this act is that the notes which it di- 



Selected Cases in Constitutional Law. 145 

rects, after having been redeemed, to be reissued and kept in cir- 
culation, shall retain their original quality of being a legal tender. 

The single question, therefore, to be considered, and upon the 
answer to which the judgment to be rendered between these parties 
depends, is whether notes of the United States, issued in time of 
war, under acts of Congress, declaring them to be a legal tender in 
payment of private debts, and afterwards in time of peace redeemed 
and paid in gold coin at the Treasury, and then reissued under the 
act of 1878, can, under the Constitution of the United States, be a 
legal tender in payment of such debts. 

Upon full consideration of the case, the court is unanimously of 
opinion that it cannot be distinguished in principle from the cases 
heretofore determined, reported under the names of the Legal Ten- 
der Cases, 12 Wall. 457; Dooley v. Smith, 13 Wall. 604; Railroad 
Company v. Johnson, 15 Wall. 195 ; and Maryland v. Railroad Com- 
pany, 22 Wall. 105 ; and all the judges, except Mr. Justice Field, 
who adheres to the views expressed in his dissenting opinions in 
those cases, are of opinion that they were rightly decided. * * * * 

By the Articles of Confederation of 1777, the United States in 
Congress assembled were authorized "to borrow money or emit bills 
on the credit of the United States ;" but it was declared that "each 
State retains its sovereignty, freedom, and independence, and every 
power, jurisdiction, and right which is not by this confederation 
expressly delegated to the United States in Congress assembled." 
Art. 2 ; Art. 9 § 5 ; 1 Stat. 4, 7. Yet, upon the question whether, 
under those articles, Congress, by virtue of the power to emit bills so 
on the credit of the United States, had the power to make bills so. 
emitted a legal tender, Chief Justice Marshall spoke very guardedly* 
saying: "Congress emitted bills of credit to a large amount, and did 
not, perhaps could not, make them a legal tender. This power re- 
sided in the States." Craig v. Missouri, 4 Pet. 410, 435. But in? 
the Constitution, as he had before observed in McCulloch v. Mary- 
land, "there is no phrase which, like the Articles of Confederation, 
excludes incidental or implied powers ; and which requires that 
everything granted shall be expressly and minutely described. * 

* * * 

The words "to borrow money," as used in the Constitution, to 
designate a power vested in the national government, for the safety 
and welfare cf the whole people, are not to receive that limited and 
restricted interpretation and meaning which they would have in a 
penal statute, or in an authority conferred, by law or by contracts 
upon trustees or agents for private purposes. 

The power "to borrow money on the credit of the United States'^ 
is the power to raise money for the public use on a pledge of the 
public credit, and may be exercised to meet either present or antici- 
pated expenses and liabilities of the government. It includes the 
power to issue, in return for the money borrowed, the obligations of 
the United States in any appropriate form, of stock, bonds, bills, or 
notes; and in whatever form they are issued, being instruments of 
the national government, they are exempt from taxation by the gov- 



146 Selected Cases in Constitutional Law. 

ernments of the several States. Weston v. Charleston City Council, 
2 Pet. 449 ; Banks v. Mayor, 7 Wall. 16 ; Bank v. Supervisors, 7 
Wall. 26. Congress has authority to issue these obligations in a form 
adapted to circulation from hand to hand in the ordinary transac- 
tions of commerce and business. In order to promote and facilitate 
such circulation, to adapt them to use as currency, and to make them 
more current in the market, it may provide for their redemption in 
coin or bonds, and may make them receivable in payment of debts to 
the government. * * * * 

It is equally well settled that Congress has the power to incor- 
porate national banks, with the capacity, for their own profit as 
well as for the use of the government in its money transactions, of 
issuing bills which under ordinary circumstances pass from hand to 
hand as money at their nominal value, and which, when so current, 
the law has always recognized as a good tender in payment of money 
debts, unless specifically objected to at the time of the tender. 
United States Bank v. Bank of Georgia, 10 Wheat 333, 347 ; Ward 
v. Smith, 7 Wall. 447, 451. The power of Congress to charter a bank 
was maintained in McCulloch v. Maryland, 4 Wheat. 316, and in 
O'sborn v. United States Bank, 9 Wheat. 738, chiefly upon the 
ground that it was an appropriate means for carrying on the money 
transactions of the government. But Chief Justice Marshall said: 
'The currency which it circulates, by means of its trade with indi- 
viduals, is believed to make it a more fit instrument for the purposes 
of government than it could otherwise be ; and if this be true, the ca- 
pacity to carry on this trade is a faculty indispensable to the char- 
acter and objects of the institution." 9 Wheat. 864. And Mr. Jus- 
tice Johnson, who concurred with the rest of the court in upholding 
the power to incorporate a bank, gave the further reason that it tend- 
ed to give effect to "that power over the currency of the country, 
which the framers of the Constitution evidently intended to give to 
Congress alone. " lb. 873. 

The constitutional authority of Congress to provide a currency for 
the whole country is now 'firmly established. In Veazie Bank v. 
Fenno, 8 Wall. 533, 548, Chief Justice Chase, in delivering the 
opinion of the court, said: "It cannot be doubted that under the 
Constitution the power to provide a circulation of coin is given to 
Congress. And it settled by the uniform practice of the govern- 
ment, and by repeated decisions, that Congress may constitutionally 
authorize the emission of bills of credit." Congress, having under- 
taken to supply a national currency, consisting of coin, of treasury 
notes of the United States, and of the bills of national banks, is 
authorized to impose on all State banks, or national banks, or private 
bankers, paying out the notes of individuals, or of State banks, a tax 
of ten per cent, upon the amount of such notes so paid out. Veazie 
Bank v. Fenno, above cited ; National Bank v. United States, 101 
U. S., 1. The reason for this conclusion was stated by Chief Justice 
Chase, and repeated by the present Chief Justice, in these words: 
"Having thus, in the exercise of undisputed constitutional powers, 
undertaken to provide a currency for the whole country, it cannot 



Selected Cases in Constitutional Law. 147 

"be questioned that Congress may constitutionally, secure the benefit 
of it to the people by appropriate legislation. To this end, Congress 
has denied the quality of legal tender to foreign coins, and has pro- 
vided by law against the imposition of counterfeit and base coin on 
the community. To the same end, Congress may restrain, by suit- 
able enactments, the circulation as money of any notes not issued un- 
der its own authority. Without this power, indeed, its attempts to 
secure a sound and uniform currency for the country must be futile." 
■8 Wall. 549 ; ioi U. S., 6. * * * * 

It appears tc us to follow, as a logical and necessary consequence, 
that Congress has the power to issue the obligations of the United 
States in such form, and to impress upon them such qualities as 
currency for the purchase of merchandise and the payment of "debts, 
as accord with the usage of sovereign governments. The power, as 
incident to the power of borrowing money and issuing bills or notes 
of the government for money borrowed, of impressing upon those 
bills or notes the quality of being a legal tender for the payment of 
private debts, was a power universally understood to belong, to 
sovereignty, in Europe and America, at the time of the framing and 
adoption of the Constitution of the United States. The governments 
of Europe, acting through the monarch or the legislature, according 
to the distribution of powers under their respective constitutions, had 
and have as sovereign a power of issuing paper money as of stamp- 
ing coin. This power has been distinctly recognized in an import- 
ant modern case, ably argued and fully considered, in which the 
Emperor of Austria, as King of Hungary, obtained from the Eng- 
lish Court of Chancery an injunction against the issue in England, 
without his license, of notes purporting to be public paper money of 
Hungary. Austria v. Day, 2 Giff. 628, and 3 D. F. & j. 217. This 
power of issuing bills of credit, and making them, at the discretion 
of the legislature, a tender in payment of private debts, had long 
been exercised in this country by the several Colonies and States ; 
and during the Revolutionary War the States, upon the recommen- 
dation of the Congress of the Confederation, had made the bills is- 
sued by Congress a legal tender. * * * * 

This position is fortified by the fact that Congress is vested with 
the exclusive exercise of the analogous power of coining money and 
regulating the value of domestic and foreign coin, and also with the 
paramount power of regulating foreign and interstate commerce. 
Under the power to borrow money on the credit of the United States, 
and to issue circulating notes for the money borrowed, its power to 
define the quality and force of those notes as currency is as broad as 
the like power over a metallic currency under the power to com 
money and to regulate the value thereof. Under the two powers, 
taken together, Congress is authorized to establish a national cur- 
rency, either in coin or in paper, and to make that currency lawful 
money for all purposes, as regards the national government or pri- 
vate individuals. 

The power of making the notes of the United States a legal tender 
in payment of private debts, being included % the power to borrow 



148 Selected Cases in Constitutional Law. 

money and to provide a national currency, is not defeated or restrict- 
ed by the fact that its exercise may affect the value of private con- 
tracts. If, upon a just and fair interpretation of the whole Constitu- 
tion, a particular power or authority appears to be vested in Con- 
gress, it is no constitutional objection to its existence, or to its exer- 
cise, that the property or the contracts of individuals may be inci- 
dentally affected. The decisions of this court, already cited, afford 
several samples of this. * * * * 

Congress, as the legislature of a sovereign nation, being expressly 
empowered by the Constitution "to lay and collect taxes, to pay the 
debts and provide for the common defence and general welfare of 
the United States," and "to borrow money on the credit of the Unit- 
ed States," and "to coin money and regulate the value thereof and of 
foreign coin ;" and being clearly authorized, as incidental to the 
exercise of those great powers, to emit bills of credit, to charter 
national banks, and to provide a national currency for the whole 
people, in the form of coin, treasury notes, and national bank bills ; 
and the power to make the notes of the government a legal tender in 
payment of private debts being one of the powers belonging to sov- 
ereignty in other civilized nations, and not expressly withheld from 
Congress by the Constitution; we are irresistibly impelled to the 
conclusion that the impressing upon the treasury notes of the United 
States the quality of being a legal tender in payment of private debts 
is an appropriate means, conducive and plainly adapted to the ex- 
ecution of the undoubted powers of Congress, consistent with the 
letter and spirit of the Constitution, and therefore, within the mean- 
ing of that instrument, "necessary and proper for carrying into ex- 
ecution the powers vested by this Constitution in the governmen of 
the United States." 

Such being our conclusion in matter of law, the question whether 
at any particular time, in war or in peace, the exigency is such, by 
reason of unusual and pressing demands on the resources of the 
government, or of the inadequacy of the supply of gold and silver 
coin to furnish the currency needed for the uses of the government 
and of the people, that it is, as matter of fact, wise and expedient 
to resort to this means, is a political question, to be determined by 
Congress when the question of exigency arises, and not a judicial 
question, to be afterwards passed upon by the courts. To quote 
once more from the judgment in McCulloch v. Maryland: "Where 
the law is not prohibited, and is really calculated to effect any of the 
objects intrusted to the government, to undertake here to inquire 
into the degree of its necessity, would be to pass the line which cir- 
cumscribes the judicial department, and to tread on legislative 
ground." 4 Wheat. 423. 

It folows that the act of May 31, 18178, ch. 146, is constitutional 
and valid; and that the Circuit Court rightly held that the tender in 
treasury notes, reissued and kept in circulation under the act, was a 
tender of lawful money in payment of the defendant's debt to the 
paintiff. Judgment affirmed. 

Note. See also Veaaie Bank v. Fenno, page 57. 



Selected Cases in Constitutional Law. 149 

SECTION V. 

The War Power of Congress. 

THE PRIZE CASES. 

2 Black. 635. 1862. 

These cases were brought to test the legality of the seizure of 
certain vessels found running the blockade of the Southern ports 
during the Civil War. (The details of the cases are omitted and 
only a portion of the opinion dealing with the war power of Con- 
gress is here cited.) 

Mr. Justice Grier delivered the opinion of the court. 

By the Constitution, Congress alone has the power to declare a 
national or foreign war. It cannot declare war against a State, or 
any number of States, by virtue of any clause in the Constitution. 
The Constitution confers on the President the whole excessive power. 
He is bound to take care that the laws be faithfully executed. He is 
Commander-in-chief of the Army and Navy of the United States, 
and of the militia of the several States when called into the actual 
service of the United States. He has no power to initiate or declare 
a war either against a foreign nation or a domestic State. But by 
the acts of Congress of February 28, 1795, and 3d of March, 1807, 
he is authorized to call out the militia and use the military and naval 
forces of the United States in case of invasion by foreign nations, 
and to suppress insurrection against the government of a State or of 
the United States. 

If a war be made by invasion of a foreign nation, the President is 
not only authorized but bound to resist force by force. He does not 
initiate the war, but is bound to accept the challenge without waiting 
for any special legislative authority. And whether the hostile party 
be a foreign invader, or States organized in rebellion, it is none the 
less a war, although the declaration of it be "unilateral." Lord 
Stowell (1 Dodson, 247) observes: "It is not the less a war on that 
account, for war may exist without a declaration on either side. It 
is so laid down by the best writers on the law of nations. A dec- 
laration of war by one country only, is not a mere challenge to be 
accepted or refused at pleasure by the other." 

The battles of Palo Alto and Resaca de la Palma had been fought 
before the passage of the act of Congress of May 13, 1846, which 
recognized "a state of war as existing by the act of the Republic of 
Mexico." This act not only provided for the future prosecution of 
the war, but was itself a vindication and ratification of the act of the 
President in accepting the challenge without a previous formal dec- 
laration of war by Congress. 

This greatest of civil wars was not gradually developed by popu- 
lar commotion, tumultuous assemblies, or local unorganized insurrec- 
tions. However long may have been its previous conception, it nev- 
ertheless sprung forth suddenly from the parent brain, a Minerva in 
the full panoply of zcar. The President was bound to meet it in the 



160 Selected Cases in Constitutional Law. 

shape it presented itself, without waiting for Congress to baptize it 
with a name ; and no name given to it by him or them could change 
the fact. Seizure of vessels zvas upheld. 



SECTION VI. 

THE POWER OF CONGRESS OVER THE TERRITORIES. 

Sub- Section A. 

The Insular Tariff Cases. 

DE LIMA v. BIDWELL. 

182 U. S., 1. 1900. 

This was ar action in the Supreme Court of New York State by 
the firm of De Lima & Co., against the collector of the port of New 
York, G. R. Bidwell, to recover duties paid under protest upon 
certain importations of sugar from San Juan, Porto Rico, during; 
the autumn of 1899, and subsequent to the cession of the island to 
the .United States. (The Foraker Act of April 12, 1900, had not 
been passed when these goods were brought into New York). The 
case was removed to the Circuit Court of the United States, which 
decided in favor of the collector of the port and against De Lima & 
Co.'s right to recover the duties. De Lima & Co. then appealed the 
case to the Supreme Court of the United States, and claimed that 
the tariff duties could only be collected on goods coming from a 
foreign country and that Porto Rico was no longer a foreign coun- 
try. 

Mr. Justice Brown delivered the opinion of the court. 

"This case raises the single question whether territory acquired 
by the United States by cession from a foreign power remains a "for- 
eign country" within the meaning of the tariff laws. * * * 

By Article II, section 2, of the Constitution, the President is given 
power, "by and with the advice and consent of the Senate, to make 
treaties, provided that two-thirds of the senators present concur;" 
and by Art. VI, "this Constitution and the laws of the United States, 
which shall be made in pursuance thereof ; and all treaties made or 
which shall be made, under the authority of the United States, shall 
be the supreme law of the land." It will be observed that no distinc- 
tion is made as to the question of supremacy between laws and 
treaties, except that both are controlled by the Constitution. A law 
requires the assent of both houses of Congress, and, except in cer- 
tain specified cases, the signature of the President. A treaty is nego- 
tiated and made by the President, with the concurrence of two-thirds 
of the senators present, but each of them is the supreme law of the 
land. 



Selected Cases in Constitutional Law. 151 

One of the ordinary incidents of a treaty is the cession of territory. 
It is not too much to say it is the rule, rather than the exception, 
that a treaty of peace, following upon a war, provides for a cession 
of territory to the victorious party. It was said by Chief Justice 
Marshall in American Ins. Co. v. Canter, i Pet. 511, 542: "The 
Constitution confers absolutely upon the government of the Union 
the powers of making war and of making treaties ; consequently that 
government possesses the power of acquiring territory, either by 
conquest or by treaty." The territory thus acquired is acquired as 
absolutely as if the annexation were made, as in the case of Texas 
and Hawaii, by an act of Congress. 

It follows from this that by the ratification of the treaty of Paris 
the island became territory of the United States — although not an 
organized territory in the technical sense of the word. * * * * 

But whatever be the source of this power, its uninterrupted exer- 
cise by Congress for a century, and the repeated declarations of this 
court, have settled the law that the right to acquire territory involves 
the right to govern and dispose of it. That was stated by Chief Jus- 
tice Taney in the Dred Scott case. In the more recent case of Na- 
tional Bank v. County of Yankton, iqi U. S., 129, it was said by 
Mr. Chief Justice Waite that Congress "has full and complete leg- 
islative authority over the people of the territories and all the de- 
partments of the territorial governments. It may do for the terri- 
tories what the people under the Constitution of the United States, 
may do for the States." * * * * In short, when once acquired by 
treaty, it (the territory) belongs to the United States, and is subject 
to the disposition of Congress. 

Territory thus acquired can remain a foreign country under the 
tariff laws only upon one of two theories ; either that the word " for- 
eign" applies to such countries as were foreign at the time the statute 
was enacted, notwithstanding any subsequent change in their condi- 
tion, or that they remain foreign under the tariff laws until Congress 
has formally embraced them within the customs union of the States. 
The first theory is obviously untenable. While a statute is presumed 
to speak from the time of its enactment, it embraces all such persons 
or things as subsequently fall within its scope, and ceases to apply to 
such as thereafter fall without its scope. Thus, a statute forbidding 
the sale of liquors to minors applies not only to minors in existence 
at the time the statute was enacted, but to all who are subsequently 
born ; and ceases to apply to such as thereafter reach their majority. 
So, when the Constitution of the United States declares in Art.i, Sec. 
10, that the States shall not <&o certain things, this declaration oper- 
ates not only upon the thirteen original States, but upon all who 
subsequently become such ; and when Congress places certain restric- 
tions upon the powers of a territorial legislature, such restrictions 
cease to operate the moment such territory is admitted as a State. 
By parity of reasoning a country ceases to be foreign the instant it 
becomes domestic. So, too, if Congress saw fit to cede one of its 
newly acquired territories (even assumig that it had the right to do 
so) to a foreign power, there could be no doubt that from the day of 



152 Selected Cases in Constitutional Law. 

such cession and the delivery of, possession, such territory would 
become a foreign country, and be reinstated as such under the tariff 
laws. Certainly no act of Congress would be necessary in such case 
to declare that the laws of the United States had ceased to apply 
to it. 

The theory that a country remains foreign with respect to the 
tariff laws until Congress has acted by embracing it within the Cus- 
toms Union, presupposes that a country may be domestic for one 
purpose and foreign for another. It may undoubtedly become nec- 
essary for the adequate administration of a domestic territory to pass 
a special act providing the proper machinery and officers, as the 
President would have no authority, except under the war power, 
to administer it himself ; but no act is necessary to make it domes- 
tic territory if once it has been ceded to the United States. We ex- 
press no opinion as to whether Congress is bound to appropriate the 
money to pay for it. This has been much discussed by writers upon 
constitutional law, but it is not necessary to consider it in this case, 
as Congress made prompt appropriation of the money stipulated in 
the treaty. This theory also presupposes that territory may be freld 
indefinitely by the United States ; that it may be treated in every 
particular, except for tariff purposes, as domestic territory ; that 
laws may be enacted and enforced by officers of the United States 
sent there for that purpose ; that insurrections may be suppressed, 
wars carried on, revenues collected, taxes imposed ; in short, that 
everything may be done which a government can can do within its 
own boundaries, and yet that territory may still remain a foreign 
country. That this state of things may continue for years, for a 
century even, but that until Congress enacts otherwise, it still re- 
mains a foreign country. To hold that this can be done as matter 
of law we deem to be judicial legislation. We find no warrant for 
it in the Constitution or in the powers conferred upon this court. It 
is true the nonaction of Congress may occasion a temporary incon- 
venience ; but it does not follow that courts of justice are authorized 
to remedy it by inverting the ordinary meaning of words. 

If an act of Congress be necessary to convert a foreign country 
into domestic territory, the question at once suggests itself, what is 
the character of the legislation demanded for this purpose? Will an 
act appropriating money for its purchase be sufficient? Apparently 
not. Will an act appropriating the duties collected upon imports to 
and from such country for the benefit of its government be suffi- 
cient? Apparently not. Will acts making appropriations for its 
postal service, for the establishment of lighthouses, for the main- 
tenance of quarantine stations, for erecting public buildings, have 
that effect? Will an act establishing a complete local government, 
but with the reservation of a right to collect duties upon commerce, 
be adequate for that purpose? None of these, nor all together, will 
be sufficient, if the contention of the government be sound, since acts 
embracing all these provisions have been passed in connection with 
Porto Rico, and it is insisted that it is still a foreign country with- 
in the meaning of the tariff laws. We are unable to acquiesce in 



Selected Cases in Constitutional Law. 153 

this assumption that a territory may be at the same time both for- 
eign and domestic. 

We are therefore of the opinion that at the time these duties were 
levied Porto Rico was not a foreign country within the meaning of 
the tariff laws, but a territory of the United States, that the duties 
were illegally exacted and that the plaintiffs are entitled to recover 
them. 

The judgment of the Circuit Court is therefore Reversed. 

Note. Five justices concurred in the majority opinion. Three 
justices dissented upon the ground that as the custom laws of the 
United States had not as yet been applied by Congress to Porto 
Rico, that such island was still foreign within the meaning of the 
Dingley Tariff act. Justice Gray dissented upon the ground that 
the majority opinion was irreconcilable with the opinion of the ma- 
jority of the court in Downes v. Bidwell. 



DOWNES v. BIDWELL. 

182 U. S., 244. 1900. 

This was an action begun in the Circuit Court of the United 
States for the southern district of New York, by Downes, against 
the collector of the port of New York, Bidwell, to recover duties 
paid under protest upon certain oranges consigned to Downes in 
New York and brought thither from San Juan, Porto Rico, in No- 
vember, 1900, after the passage of the act of Congress taking effect 
May 1, 1900, and known as the Foraker act, which provided for a 
civil government and revenues for the island of Porto Rico and re- 
quired the payment of 15% of the duty levied on like articles from 
foreign countries should be collected on goods coming from Porto 
Rico. The Circuit Court decided in favor of the collector of the 
port of New York and against Downes' right to recover the duties, 
whereupon Downes appealed to the United States Supreme Court. 

Mr. Justice Brown announced the conclusion and judgment of 
the court. * * * * 

In the case of De Lima v. Bidwell, just decided, we held that 
upon the ratification of the treaty of peace with Spain, Porto Rico 
ceased to be a foreign country, and became a territory of the United 
States, and that duties were no longer collectible upon merchandise 
brought from that island. We are now asked to hold that it became 
a part of the United States within that provision of the Constitution 
which declares that "all duties, imposts and excises shall be uniform 
throughout the United States." (Art. 1, sec. 8). If Porto Rico be a 
part of the United States, the Foraker act imposing duties upon its 
products is unconstitutional, not only by reason of a violation of the 
uniformity clause, but because by sec. 9 "vessels bound to or from 
one State" cannot "be obliged to enter, clear. or pay duties in an- 
other." 

The case also involves the broader question whether the revenue 



154 Selected Cases in Constitutional Law. 

clauses of the Constitution extend of their own force to our newly 
acquired territories. The Constitution itself does not answer the 
question. Its solution must be found in the nature of the govern- 
ment created by that instrument, in the opinion of its contempora- 
ries, in the practical construction put upon it by Congress and in the 
decisions of this court. * * * * 

To sustain the judgment in the case under consideration it by no 
means becomes necessary to show that none of the articles of the 
Consitution apply to the Island of Porto Rico. There is a clear dis- 
tinction between such prohibitions as go to the very root of the pow- 
er of Congress to act at all, irrespective of time or place, and such 
as are operative only ''throughout the United States" or among the 
several States. 

Thus, when the Constitution declares that "no bill of attainder or 
ex post facto law shall be passed," and that "no title of nobility shall 
be granted by the United States," it goes to the competency of Con- 
gress to pass a bill of that description. Perhaps, the same remark 
may apply to the First Amendment, that "Congress shall make no 
law respecting an establishment of religion, or prohibiting the free 
exercise thereof ; or abridging the freedom of speech, or of the press ; 
or the right of the people to peacefully assemble, and to petition the 
government for a redress of grievances." We do not wish, however, 
to be understood as expressing an opinion how far the bill of rights 
contained in the first eight amendments is of general and how far of 
local application. 

Upon the other hand, when the Constitution declares that all duties 
shall be uniform "throughout the United States," it becomes neces- 
sary to inquire whether there be any territory over which Congress 
has jurisdiction which is not a part of the "United States," by which 
term we understand the States whose people united to form the 
Constitution, and such as have since been admitted to the Union upon 
an equality with them. Not only did the people in adopting the 
Thirteenth Amendment thus recognize a distinction between the 
United States and "any place subject to their jurisdiction," but Con- 
gress itself, in the Act of March 27, 1804, providing for the proof of 
public records, applied the provisions of the act not only to "every 
court and office within the United States," but to the "courts and 
offices of the respective territories of the United States and countries 
subject to the jurisdiction of the United States," as to the courts and 
offices of the several States. 

Unless these words are to be rejected as meaningless, we must 
treat them as a recognition by Congress of the fact that there may 
be territories subject to the jurisdiction of the United States, which 
are not of the United States. 

In determining the meaning of the words of Article 1, section 6, 
"uniform throughout the United States," we are bound to consider 
not only the provisions forbidding preference being given to the ports 
of one State over those of another, (to which attention has already 
been called,) but the other clauses declaring that no tax or duty 
shall be laid on articles exported from any State, and that no State 



Selected Cases in Constitutional Law. 156 

shall, without the consent of Congress, lay any imposts or duties 
upon imports or exports, nor any duty on tonnage. The object of all 
of these was to protect the States which united in forming the Con- 
stitution from discriminations by Congress, which would operate un- 
fairly or injuriously upon some States and not equally upon others. 
The opinion of Mr. Justice White in Knowlton v. Moore (178 U. S. 
41) contains an elaborate historical review of the proceedings in the 
convention, \tyhich resulted in the adoption of these different clauses 
and their arrangement, and he there comes to the conclusion (p. 105) 
that "although the provision as to preference between ports and" 
that regarding uniformity of duties, imposts and excises were one 
in purpose, one in their adoption, " they were originally placed to- 
gether, and "became separate only in arranging the Constitution for 
the purpose of style." Thus construed together, the purpose is ir- 
resistible that the words "throughout the United States" are indis- 
tinguishable from the words "among or between the several States," 
and that these prohibitions were intended to apply only to commerce 
between ports of the several States as they then existed or should" 
thereafter be admitted to the Union. 

Indeed, the practical interpretation put by Congress upon the Con- 
stitution has been long continued and uniform to the effect that the 
Constitution is applicable to territories acquired by purchase or con- 
quest only when and so far as Congress shall so direct. ****-- 

We are also of opinion that the power to acquire territory by treaty 
implies not only the power to govern such territory, but to prescribe 
upon what terms the United States will receive its inhabitants, and 
what their status shall be in what Chief Justice Marshall termed 1 
the "American Empire.'' There seems to be no middle ground be- 
tween this position and the doctrine that if their inhabitants do not 
become, immediately upon annexation, citizens of the United States,, 
their children thereafter born, whether savages or civilized, are such, 
and entitled to all the rights, privileges and immunities of citizens. 
If such be their status, the consequences will be extremely serious.. 
Indeed, it is doubtful if Congress would ever assent to the annexa- 
tion of territory upon the condition that its inhabitants, however for- 
eign they may be to our habits, traditions and modes of life, shall 
become at once citizens of the United States. In all its treaties hith- 
erto the treaty-making power has made special provision for this 
subject; in the cases of Louisiana and Florida, by stipulating that 
"the inhabitants shall be incorporated into the Union of trie United 
States and admitted as soon as possible * * * to the enjoyment of all 
the rights, advantages and immunities of citizens of the United 
States ;" in the case of Mexico,that they should "be incorporated into 
the Union,and be admitted at the proper time, (to be judged of by the 
Congress of the United States,) to the enjoyment of all the rights of 
citizens of the United States ;" in the case of Alaska, that the inhab- 
itants who remained three years, "with the exception of uncivilized 
native tribes, shall be admitted to the enjoyment of all the rights," 
&c. ; and in the case of Porto Rico and the Philippines, "that the civil 
rights and political status of the native inhabitants * * * shall be de- 



156 Selected Cases in Constitutional Law. 

termined by Congress." In all these cases there is an implied denial 
of the right of the inhabitants to American citizenship until Congress 
by further action shall signify its assent thereto. * * * * 

We are therefore of opinion that the Island of Porto Rico is a ter- 
ritory appurtenant and belonging to the United States, but not a part 
of the United States within the revenue clauses of the Constitution ; 
that the Foraker Act is constitutional, so far as it imposes duties 
upon imports from such island, and that the plaintiff cannot recover 
back the duties exacted in this case. 

The judgment of the Circuit Court is therefore Affirmed. 

Note. There were a number of separate opinions delivered by 
the justices. Those who concurred in the majority judgment came 
to the same conclusion as Mr. Justice Brown but by a different line 
of reasoning. For example, Justices White, Shiras and McKenna 
held that until Congress has formally incorporated the territory into 
the United States, the various provisions of the Consitution are in- 
applicable thereto, as otherwise, so far as fiscal matters are concern- 
ed, the action of the treaty making power could override the will of 
Congress. 

The four justices who dissented held that uniformity of taxation 
means geographical uniformity throughout the United States and 
that the phrase "the United States" includes the territories as well 
-as the States. 



DOOLEY v UNITED STATES 

183 U. S., 151. 1 901. 

The Foraker Act required all merchandise going into Porto Ri- 
co from the United States to pay a duty of 115 per cent, of the 
amount of duties paid upon merchandise imported from foreign 
countries. Dooley, Smith and Company imported certain mer- 
chandise into Porto Rico from New York. They paid the duties 
under protest and now sue in the Circuit Court to recover them 
t>ack on the ground that the Foraker Act is unconstitutional, being 
repugnant to the clause in the Constitution declaring "no tax or 
duty shall be laid on articles of export from any State." The Cir- 
cuit Court decided that the duties were properly collected, where- 
upon Doolev, Smith and Company appealed the case to the United 
States Supreme Court. 

Mr. Justice Brown delivered the opinion of the court. 

While the words "import" and "export" are sometimes used to 
denoted goods passing from one State to another, the word "im- 
port," in connection with the provision of the Constitution that "no 
State shall levy any imposts or duties on imports or exports," was 
held in Woodruff v. Parkham, 8 W T all. 123, to apply only to ar- 
ticles imported from foreign .countries into the United States. 



Selected Cases in Constitutional Law. 157 

In discussing this question and particularly of the power of 
Congress to levy and collect taxes, duties, imposts and excises, Mr. 
Justice Miller observed: "Is the word 'impost/ here used, intend- 
ed to confer upon Congress a distinct power to levy a tax upon all 
goods or merchandise carried from one State to another? Or- 
is the power limited to duties on foreign imports? If the for- 
mer be intended, then the power conferred is curiously rendered: 
nugatory by the subsequent clause of the ninth section which de- 
clares that no tax shall be laid on articles exported from any State,, 
for no article can be imported from one State into another which 
is not at the same time exported from the former. But if we 
give to the word "imposts" as used in the first mentioned clause,, 
the definition of Chief Justice Marshall, and to the word 'export' 
the corresponding idea of something carried out of the United 
States, we have, in the power to lay duties on imports from abroad, 
and the prohibition to lay such duties on exports to other countries 
the power and its limitations concerning imports." 

It follows, and is the logical sequence of the case of Woodruff 
v. Parkham, that the word "export" should be given a correlative 
meaning, and applied only to goods exported to a foreign country. 
Muller v. Baldwin, L. R. 9 Q. B. 457. If, then, Porto Rico be no 
longer a foreign country under the Dingley Act, as was held by 
a majority of this court in De Lima v. Bidwell, 182 U. S. 1, and 
Dooley v. United States, 182 U. S. 222, we find it impossible to 
say that goods carried from New York to Porto Rico can be con- 
sidered as "exported" from New York within the meaning of 
that clause of the Constitution. If they are neither exports nor 
imports, they are still liable to be taxed by Congress under the 
ample and comprehensive authority conferred by the Constitution 
"to lay and collect taxes, duties, imposts and excises." Art. 1, sec. 8. 

5j< >)> 5Jx *jC 

These duties were properly collected, and the action of the Circuit 
Court in sustaining the demurrer to the complaint was correct,. 
and it is therefore Affirmed. 



Sub- Section B. 

Extension of the Constitution to the Territories. 

MORMON CHURCH! v UNITED STATES 

136 U. S., 1. 1890. 

By virtue of an express reservation in the organic act of the 
Territory of Utah of the power to disapprove and annul the acts 
of its legislature, Congress on February 19th, 1887, repealed the act 
of incorporation of the Church of Jesus Christ of Later Day 
Saints (The Mormon Church), for the reason that one of the 
principal objects of the Mormon Church was the promotion and 



158 Selected Cases in Constitutional Law. 

practice of polygamy, which was prohibited by the laws of the 
United States. 

In a proceeding under the Act of February 19, 1887, the Su- 
preme Court of the Territory of Utah decreed that the Corpora- 
tion of the Church of Christ of Latter Day Saints was dissolved, 
whereupon the Church appealed to the Supreme Court of the 
United States, contending that Congress had not power to pass 
the Act of 1887. 

Mr. Justice Bradley delivered the opinion of the court : 

"Doubtless Congress, in legislating for the Territories, would 
be subject to those fundamental limitations in favor of personal 
rights which are formulated in the Constitution and its amend- 
ments ; but these limitations would exist rather by inference and 
the general spirit of the Constitution from which Congress derives 
all its powers, than by any express and direct application of its 
provisions. The supreme power of Congress over the Territories 
and over the acts of the territorial legislatures established therein 
is generally expressly reserved in the organic acts establishing 
governments in said Territories. This is true of the Territory of 
Utah. In the sixth section of the act establishing a territorial gov- 
ernment in L T tah, approved September 9, 1850, it is declared 'that 
the legislative powers of said Territory shall extend to all rightful 
subjects of legislation, consistent with the Constitution of the 
United States and the provisions of this act. * * * * All the laws 
passed by the legislative assembly and governor shall be submitted 
to the Congress of the United States, and if disapproved shall be 
null and of no effect.' 9 Stat. 454-" 

The decree of the Supreme Court of Utah was affirmed. 



HAWAII v MANKICHI 

190 U. S., 197. 1903. 

This was a petition by Mankichi for a writ of habeas corpus to 
obtain his release from the Oahu convict prison, in Hawaii, where 
he was confined upon conviction for manslaughter. He alleged a 
violation of the Constitution in that he was tried upon an indictment 
not found by a grand jury, and convicted by the verdict of nine out 
of twelve jurors, the other three dissenting from the verdict. In 
support of his contention, Mankichi cited the Newlands Resolution 
of July 7, 1898, annexing Hawaii, which provided that, 'The 
municipal legislation of the Hawaiian Islands, not contrary to the 
Constitution of the United States, shall remain in force until the 
Congress of the United States shall otherwise determine." Man- 
kichi's conviction was in accord with the municipal law of Hawaii, 
but he claimed this law violated Article V of the Amendments to 
the Constitution, which provides that "No person shall be held 
to answer for a capital, or otherwise infamous crime, unless on 
a presentment or indictment of a grand jury," and Article VI of 



Selected Cases in Constitutional Law. 159 

the Amendments, which provides that "In all criminal prosecutions 
the accused shall enjoy the right to a speedy and public trial, by 
an impartial jury of the State and district wherein the crime shall 
have been committed." The Supreme Court has interpreted this 
clause in regard to a jury trial to mean a trial by a common law 
jury of twelve men who shall render an unanimous verdict. From 
an order of the United States District Court discharging the pris- 
oner the Attorney-General of the Territory appealed to the Supreme 
Court of the United States. 

Mr. Justice Brown delivered the opinion of the court : 

If the negative words of the resolution, "nor contrary to the Con- 
stitution of the United States," be construed as imposing upon 
the islands, every provision of the Constitution, which must have 
been unfamiliar to a large number of their inhabitants, and for 
which no previous preparation had been made, the consequences 
in this particular connection would be that every criminal in the 
Hawaiian Islands convicted of an infamous offense between August 
12, 1898, and June 14, 1900, when the act organizing the territorial 
government took effect, must be set at large ; and every verdict in 
a civil case rendered by less than a unanimous jury held for 
naught. Surely such a result could not have been within the con- 
templation of Congress. It is equally manifest that such could 
not have been the intention of the Republic of Hawaii in surren- 
dering its autonomy. Until then it was an independent nation, ex- 
ercising all the powers and prerogatives of complete sovereignty. 
It certainly could not have anticipated that, in dealing with anoth- 
er independent nation, and yielding up its sovereignty, it had de- 
nuded itself, by a negative pregnant, of all power of enforcing 
its criminal laws according to the methods which had been in vogue 
for sixty years, and was adopting a new procedure for which it 
had had no opportunity of making prejaration. * * * 

It is not intended here to decide that the words "nor contrary to 
the Constitution of the United States," are meaningless. Clear- 
ly they would be operative upon any municipal legislation there- 
after adopted, and upon any proceedings thereafter had, when 
the application of the Constitution would not result in the destruc- 
tion of existing conditions conducive to the peace and good or- 
der of the community. Therefore we should answer without 
hesitation in the negative the question put by counsel for the pe- 
titioner in their brief: "Would municipal status of Hawaii, al- 
lowing a conviction of treason on circumstantial evidence, or the 
testimony of one witness, depriving a person of liberty by the 
will of the ligislature and without process, or confiscating private 
property for public use without compensation, remain in force 
after the annexation of the Territory to the United States, which 
was conditioned upon the extinction of all legislation contrary to 
the Constitution?" We would go even farther, and say that most, 
if not all, the privileges and immunities contained in the bill of 
rights of the Constitution were intended to apply from the mo- 



160 



Selected Cases in Constitutional Law. 



ment of annexation; but we place our decision of this case upon 
the ground that the two rights alleged to be violated in this case are 
not fundamental in their nature, but concern merely a method 
of procedure which sixty years of practice had shown to be suit- 
ed to the conditions of the islands, and well calculated to conserve 
the rights of their citizens to their lives, their property and their 
well being. 

The decree of the District Court for the Territory of Hawaii 
must be reversed, and the case remanded to that court with in- 
structions to dismiss the petition. 

Nots. — In Rassmusen v. U. S., 197 U. S. 516, the Supreme Court 
held that trial by jury is a constitutional incident to judicial pro- 
cedure in Alaska because under the terms of the treaty and by 
subsequent act of Congress Alaska has been incorporated into the 
United States. 



GONZALES v. WILLIAMS 

192 U. S.j 1. 1904. 

This was an appeal by Isabella Gonzales from an order of the 
Circuit Court of the United States for the Southern District of 
New York, dismissing a writ of habeas corpus issued on her be- 
half, and remanding her to the custody of the United States Com- 
missioner of Immigration at the port of New York. It appear- 
ed that Isabella Gonzales, an unmarried woman, was born and 
resided in Porto Rico, and was an inhabitant thereof on April 11, 
1899, the date of the proclamation of the Treaty of Paris ; she 
arrived at the Port of New York from Porto Rico, August 24, 1902, 
when she was prevented from landing and detained as "an alien 
immigrant," in order that she might be returned to Porto Rico 
if it appeared that she was likely to become a public charge. If 
she was not an alien immigrant within the intent and meaning of 
the Act of Congress (Act March 3, 1891, relative to immigra- 
tion) the commissioner had no power to detain or deport her. 

Mr. Chief Justice Fuller delivered the opinion: 

* * * * The treaty ceding Porto Rico to the United States was 
ratified by the Senate, February 6, 1899; Congress passed an act 
to carry out its obligations March 2, 1899 ; and the ratifications 
were exchanged and the treaty proclaimed April 11, 1899. Then 
followed an act entitled "An act temporarily to provide remedies 
and civil government for Porto Rico, and for other purposes," 
approved April 12, 1900. * * * * 

By section 7 the inhabitants of Porto Rico, who were Spanish 
subjects on the day the treaty was proclaimed, including Spaniards 
of the Peninsula who had not elected to preserve their alle- 
giance to the Spanish Crown, were to be deemed citizens of Porto 
Rico, and they and citizens of the United States residing in Porto 
Rico were constituted a body politic under the name of the People 



Selected Cases in Constitutional Law. 161 

of Porto Rice. Gonzales was a native inhabitant of Porto Rico 
and a Spanish subject, though not of the Peninsula, when the 
cession transferred her allegiance to the United States, and she 
was a citizen of Porto Rico under the act. And there was noth- 
ing expressed in the act, nor reasonably to be implied therefrom 
to indicate the intention of Congress that citizens of Porto Rico 
should be considered as aliens and the right of free access denied 
to them. Counsel for the government contends that the test of 
Gonzales' rights was citizenship of the United States, and not 
alienage. We do not think so, and on the contrary, are of opin- 
ion that if Gonzales were not an alien within the act of 1891, the 
order below was erroneous, * * * * We cannot concede, in 
view of the language of the treaty and of the act of April' 12, 
1900, that the word "alien" so used in the act of 1891, embraces 
the citizens of Porto Rico. We are not required to discuss the 
power of Congress in the premises ; or the contention of Gonzales 7 
counsel that the cession of Porto Rico accomplished the naturaliza- 
tion of its people ; or that of Commissioner Degatau, in his excellent 
argument as amicus curiae, that a citizen of Porto Rico, under the 
Act of 1900 is necessarily a citizen of the United States. The 
question is the narrow one whether Gonzales was an alien with- 
in the meaning of that term as used in the Act of 189 1. * * * 
. .Final order reversed and cause remanded with a direction to dis- 
charge Gonzales. 



SECTION VII 
THE IMPLIED POWERS OF CONGRESS 
Sub-Section A. 
Exclusion of Foreigners. 
THE CHINESE EXCLUSION CASE 
CHAE CHANG PING v UNITED STATES 
130 U. S. 3 581. 1889. 
The facts are sufficiently stated in the opinion of the court. 
Mr. Chief Justice Field delivered the opinion of the court. 
The appellant is a subject of the Emperor of China and a laborer 
by occupation. He resided at San Francisco, California, follow- 
ing his occupation, from some time in 1875 until June 2, 1887, 
when he left for China on the steamship "Gaelic," having in his 
possession a certificate, in terms entitling him to return to the 
United States, bearing date on that day, duly issued to him by the 
collector of customs of the port of San Francisco, pursuant to 



162 Selected Cases in Constitutional Law. 

the provisions of section four of the restriction act of May 6, 1882, 
as amended by the Act of July 5, 1884. 

On; the 7th of September, 1888, the appellant, on his return to 
California, sailed from Hong Kong in the steamship "Belgic," which 
arrived within the port of San Francisco on the 8th of October fol- 
lowing. On his arrival he presented to the proper custom-house 
officers his certificate, and demanded permission to land. The col- 
lector of the port refused the permit, solely on the ground that un- 
der the act of Congress, approved October 1, 1888, supplementary 
to the restriction acts of 1882 and 1884, the certificate had been 
annulled and his right to land abrogated, and he had been thereby 
forbidden again to enter the United States. The captain of the 
steamship, therefore, detained the appellant on board the steamer. 
Thereupon a petition on his behalf was presented to the Circuit 
Court of the United States for the Northern District of California, 
alleging that he was unlawfully restrained of his liberty, and pray- 
ing that a writ of habeas corpus might be issued directed to the 
master of the steamship, commanding him to have the body of the 
appellant, with the cause of his detention, before the court at a 
time and place designated, to do and receive what might there be 
considered in the premises. A writ was accordingly issued, and in 
obedience to it the body o(f the appellant was produced in court. 
Upon, the hearing which followed, the court, held that the appel- 
lant was not entitled to enter the United States, and was not utn- 
lawfuly restrained of his liberty, and ordered that he be remanded 
to the custody of the master of the steamship from which he had 
been taken under the writ. From this order an appeal was taken 
to this court. 

The appeal involves a consideration of the validity of the Act of 
Congress of October 1, 1888, prohibiting Chinese laborers from en- 
tering the United States who had departed before its passage, 
having a certificate issued under the act of 1882 as amended by the 
act of 1884, granting them permission to return. The validity of 
the act is assailed as being in effect an expulsion from the country 
of Chinese laborers, in violation of existing treaties between the 
United States and the government of China, and of rights vested 
in them under the laws of Congress. * * * * 

There being nothing in the treaties between China and the United 
States to impair the validity of the Act of Congress of October 1. 
1888, was it on any other ground beyond the competency of Con- 
gress to pass it? If so, it must be because is was not within the 
power of Congress to prohibit Chinese laborers who had at the 
time departed from the United States, or should subsequently de- 
part, from returning to the United States. Those laborers are 
not citizens cf the United States ; they are aliens. That the gov- 
ernment of the United States, through the action of the legislative 
department, can exclude aliens from! its territory is a proposition 
which we do not think open to controversy. Jurisdiction over its 
own territory to that extent is an incident of every independent 
nation. It is a part of its independence. If it could not exclude 



Selected Cases in Constitutional Law. 163 

aliens it would be to that extent subject to the control of another 
power. "* * * * 

The power of exclusion of foreigners being an incident of sover- 
eignty belonging to the government of the United States, as a part 
of those sovereign powers delegated by the Constitution, the right 
to its exercise at any time when, in the judgment of the govern- 
ment, the interests of the country require it, cannot be granted 
away or restrained on behalf of any one. The powers 7 of govern- 
ment are delegated in trust to the United States, and are incapable 
of transfer to any other parties. They cannot be abandoned or sur- 
rendered. Nor can their exercise be hampered, when needed for 
the public good, by any considerations of private interest. The 
exercise of these public trusts is not the subject of barter or con- 
tract. Whatever license, therefore, Chinese laborers may have ob- 
tained, previous to the act of October I, 18I88, to return to the 
Unitel States after their departure, is held at the will of the gov- 
ernment, revocable at any time, at its pleasure. Whether a proper 
consideration by our government of its previous laws, or a proper 
respect for the nation whose subjects are affected by its action, 
ought to have qualified its inhibition and made it applicable only to 
persons departing from the country after the passage of the act, are 
not questions for judicial determination. If there be any just 
ground of complaint on the part of China, it must be made to 
the political department of our government, which is alone compe- 
tent to act upon the subject. The rights and interests created 
by a treaty, which have become so vested that its expiration or abro- 
gation will not destroy or impair them, are such as are connected 
with and lie in property, capable of sale and transfer or other dis- 
position, not such as are personal and untransferable in their char- 
acter. * * * * Order Affirmed. 



Sub-Section B. 

Right of Eminent Domain. 

KOHL v. UNITED STATES 

91 U. S., 367. 1875 

Congress by act of xMarch 2, 1872, authorized the Secretary of 
the Treasury to purchase in the City of Cincinnati a suitable site for 
a building for the accommodation of the United States post office 
and for other public purposes, and by a subsequent act made an 
appropriation "for the purchase at private sale or by condemnation 
of such site." Pursuant to this act a proceeding was instituted 
in the Circuit Court by the United States to appropriate a certain 
parcel of land in the city of Cincinnati as a site for a post office. 
The owners of the property sought to be appropriated moved to 
dismiss the proceeding on the ground that Congress did not under 
the Constitution have the right of eminent domain. The Circuit 



164 Selected Cases in Constitutional Law. 

Court gave judgment for the United States. Appeal was taken to> 
the United States Supreme Court. 

Mr. Justice Strong delivered the opinion of the court. 

It has not been seriously contended during the argument that the 
United States government is without power to appropriate lands or 
other property within the States for its own uses, and to enable 
it to perform its proper functions. Such an authority is essential 
to its independent existence and perpetuity. These cannot be pre- 
served if the obstinacy of a private person, or if any other author- 
ity, can prevent the acquisition of the means or instruments by 
which alone governmental functions can be performed. The powers 
vested by the Constitution in the general government demand for 
their exercise the acquisition of lands in all the States. These are 
needed for forts, armories, and arsenals, for navy-yards and light- 
houses, for custom-houses, post-offices, and court-houses, and for 
other public uses. If the right to acquire property for such uses 
may be made a barren right by the unwillingness of property-holders 
to sell, or by the action of a State prohibiting a sale to the Federal 
government, the constitutional grants of power may be rendered 
nugatory, and the government is dependent for its practical exist- 
ence upon the will of a State, or even upon that of a private citi- 
zen. This cannot be. No one doubts the existence in the State 
governments of the right of eminent domain, — a right distinct 
from and paramount to the right of ultimate ownership. It grows 
out of the necessities of their being, not out of the tenure by which 
lands are held. It may be exercised, though the lands are not held 
by grant from the government, either mediately or immediately, 
and independent of the consideration whether they would escheat 
to the government in case of a failure of heirs. The right is the 
offspring of political necessity ; and it is inseparable from sovereign- 
ty, unless denied to it by its fundamental law. But it is no more 
necessary for the exercise of the powers of a State government than 
it is for the exercise of the conceded powers of the Federal gov- 
ernment. That government is as sovereign within its sphere 
as the States are within theirs. True, its sphere is lim- 
ited. Certain subjects only are committed to it, but its power 
over those subjects is as full and complete as is the power of the 
States over the subjects to which their sovereignty stands. The 
power is not changed by its transfer to another holder. 

But, if the right of eminent domain exists in the Federal gov- 
ernment, it is a right which may be exercised within the States, so 
far as is necessary to the enjoyment of the powers conferred upon 
it by the Constitution. In Albeman v. Booth, 21 How. 523, Chief 
Justice Taney described in plain language the complex nature of 
our government, and the existence of two distinct and separate sov- 
ereignties within the same territorial space, each of them restrict- 
ed in its powers, and each, within its sphere of action prescribed by 
the Constitution of the United States, independent of the other. 
Neither is under the necessity of applying to the other for permis- 



Selected Cases in Constitutional Law. 165 

^ion to exercise its lawful powers. Within its own sphere, it* may 
employ all the agencies for exerting them which are appropriate or 
necessary, and which are not forbidden by the law of its being. 
When the power to establish post-offices and to create courts within 
the States was conferred upon the Federal government, included in 
it was authority to obtain sites for such offices and for court-houses, 
and to obtain them by such means as were known and appropriate, 
The right of eminent domain was one of those means well known 
when the Constitution was adopted, and employed to obtain lands 
for public uses. Its existence, therefore, in the grantee of that 
power, ought not to be questioned. The Constitution itself contains 
an implied recognition of it beyond what may justly be implied 
from the express grants. The Fifth Amendment contains a pro- 
vision that private property shall not be taken for public use with- 
out just compensation. What is that but an implied assertion, that, 
-on making just compensation, it may be taken? * * * * 

It is true, this power of the Federal government has not hereto- 
fore been exercised adversely ; but the non-user of a power does not 
disprove its existence. In some instances, the States, by virtue of 
their own right of eminent domain, have condemned lands for the 
use of the general government, and such condemnations have been 
sustained by their courts, without, however, denying the right of the 
United States to act independently of the States. * * * * The proper 
view of the right of eminent domain seems to be, that it is a right 
belonging to a sovereignty to take private property for its own 
public uses, and not for those of another. Beyond that, there exists 
tio necessity; which alone is the foundation of the right. If the 
United States have the power, it must be complete in itself. It can 
neither be enlarged nor diminished by a State. Nor can any 
State prescribe the manner in which is must be exercised. The 
consent of a State can never be a condition precedent to its en- 
joyment. Such consent is needed only, if at all, for the transfer 
of jurisdiction and of the right of exclusive legislation after the land 
shall have been acquired. 

The judgment of the lower court is affirmed 



Sub-Section C. 

The power to make all laws necessary and proper for carrying into 
excution the enumerated powers. 

McCulloch v. Maryland. See page 60. 

Gibbons v. Ogden. See page 78. 

Julliard v. Greenman. See page 144. 



166 Selected Cases in Constitutional Law. 

SECTION VIII. 
Restrictions on the Powers of Congress. 

Sub-Section A. 

The Bill of Rights (First Ten Amendments.) 

BARRON v. BALTIMORE. 

7 Pet. 243. 1833. 

Barron brought suit against the City of Baltimore to recover dam- 
ages for injuiies to certain wharf-property owned by him in Balti- 
more. The value of his deep water wharf had been destroyed by a 
sand bar created in front of it, in consequence of a change of water 
currents in the harbor. It appeared that the City of Baltimore in the 
exercise of its corporate authority over paving and grading of streets 
and over the health of its inhabitants had diverted certain streams 
of water from their natural and accustomed course and caused them 
to flow into the harbor in such a way as to deposit sand in front of 
Barron's wharf. Barron could get no redress in the State courts 
and took an appeal to the Federal courts, carrying' his case to the 
Supreme Court of the United States, alleging a violation of Arti- 
cle V of the amendments to the Constitution of the United States, 
which declares that "private property shall not be taken for public 
use without just compensation." 

Marshall, C. J., delivered the opinion of the court. 

* * * The Constitution was ordained and established by the people 
of the United States for themselves, for their own government and 
not for the government of the individual States. Each State estab- 
lished a constitution for itself, and in that constitution, provided such 
limitations and restrictions on the powers of its particular govern- 
ment as its judgment dictated. The people of the United States 
framed such a government for the United States as they supposed 
best adapted to their situation, and best calculated to promote their 
interests. The powers they conferred on this government were to- 
be exercised by itself; and the limitations on power, if expressed in 
general terms, are naturally, and, we think, necessarily applicable- 
to the government created by the instrument. They are limitations 
of power granted in the instrument itself; not of distinct govern- 
ments, framed by different persons and for different purposes. 

If these propositions be correct, the 5th amendment must be under- 
stood as restraining the power of the general government, not as 
applicable to the States. In their several constitutions they have 
imposed such restrictions on their respective governments as their 
own wisdom suggested ; such as they deemed most proper for them- 
selves. It is a subject on which they judge exclusively, and with 
which others interfere no further than they are supposed to have 
a common interest. 

The counsel for the plaintiff in error insists that the Constitution- 



Selected Cases in Constitutional Law. i67 

was intended to secure the people of the several States against the 
undue exercise of power by their respective State governments ; as 
well as against that which might be attempted by their general 
government. In support of this argument he relies on the inhibitions 
contained in the ioth section of the 1st article. 

We think that section affords a strong if not a conclusive argu- 
ment in support of the opinion already indicated by the court. 

The preceding section contains restrictions which are obviously 
intended for the exclusive purpose of restraining the exercise of pow- 
er, by the departments of the general government. Some of them 
use language applicable to Congress ; others are expressed in gen- 
eral terms. The 3d clause, for example, declares that "no bill of at- 
tainder or ex post facto law shall be passed." No language can be 
more general ; yet the demonstration is complete that it applies sole- 
ly to the government of the United States. In addition to the gen- 
eral arguments furnished by the instrument itself, some of which 
have been already suggested, the succeeding section, the avowed 
purpose of which is to restrain State legislation, contains in terms 
the very prohibition. It declares that "no State shall pass any \ ill 
of attainder or ex post facto law." This provision, then, of the 
9th section, however comprehensive its language, contains no re- 
striction on State legislation. 

The 9th section having enumerated, in the nature of a bill oi 
rights, the limitations intended to be imposed on the powers of the 
general government, the ioth proceeds to enumerate those which 
were to operate on the State legislatures. These restrictions are 
brought together in the same section, and are by express words ap- 
plied to the States. "No States shall enter into any treaty," etc. 
Perceiving that in a Consitution framed by the people of the United 
States for the government of all, no limitation of the action of gov- 
ernment on the people would apply to the State government, unless 
expressed in terms; the restrictions contained in the ioth section are 
in direct words so applied to the States. 

It is worthy of remark, too, that these inhibitions generally re- 
strain State legislation on subjects intrusted to the general govern- 
ment, or in which the people of all the States feel an interest. 

A State is forbidden to enter into any treaty, alliance, or confed- 
eration. If these compacts are with foreign nations, they interfere 
with the treaty-making power, which is conferred entirely on the 
general government ; if with each other, for political purposes, they 
can scarcely fail to interfere with the general purpose and intent of 
the Constitution. To grant letters of marque and reprisal, would 
lead directly to war ; the power of declaring which is expressly given 
to Congress. To coin money is also the exercise of a power confer- 
red on Congress. It would be tedious to recapitulate the several lim- 
itations on the powers of the States which are contained in this sec- 
tion. Thev will be found, generally, to restrain State legislation on 
subjects intrusted to the government of the Union, in which the citi- 
zens of all the States are interested. In these alone were the whole 



168 



Selected Cases in Constitutional Law. 



people concerned. The question of their application to States is not 
ieit to construction. It is averred in positive words. 

If the original Constitution, in the 9th and 10th sections of the 1st 
-article, draws this plain and marked line of discrimination between 
the limitations it imposes on the powers of the general government 
and on those of the States ; if in every inhibition intended to act on 
State power, words are employed which directly express that in- 
tent; some strong reason must be assigned for departing from this 
safe and judicious course in framing the amendments, before that 
departure can be assumed. 

We search in vain for that reason. 

Had the people of the several States, or any of them required 
changes in their constitutions; had they required additional safe- 
guards to liberty from the apprehended encroachments of their par- 
ticular governments; the remedy was in their own hands, and would 
have been applied by themselves. A convention would have been 
assembled by the discontented State, and the required improvements 
would have been made by itself. The unwieldy and "cumbrous 
machinery of procuring a recommendation from two thirds of Con- 
gress, and the assent of three fourths of their sister States, could 
never have occurred to any human being as a mode of doing that 
which might be effected by the State itself. Had the framers of 
these amendments intended them to be limitations on the powers of 
the State governments, they would have imitated the framers of the 
original Constitution, and haxe expressed that intention. Had Con- 
gress engaged in the extraordinary occupation of improving the 
constitutions of the several States by affording the people additional 
protection from the exercise of power by their own governments in 
matters which concerned themselves alone, they would have declared 
this purpose in plain and intelligible language. 

But it is universally understood, it is a part of the history of the 
day, that the great revolution which established the Constitution of 
the United States, was not effected without immense opposition. 
Serious fears were extensively entertained that those powers which 
the patriot statesmen, who then watched over the interests of our 
country, deemed essential to union, and to the attainment of those 
invaluable objects for which union was sought, might be exercised 
in a manner dangerous to liberty. In almost every convention by 
which the constitution was adopted, amendments to guard against 
the abuse of power were recommended. These amendments de- 
manded security against the apprehended encroachments of the gen- 
eral government, not against those of the local governments. 

In compliance with a sentiment thus generally expressed to quiet 
fears thus extensively entertained, amendments were proposed by 
the required majority in Congress, and adopted by the States. These 
amendments contain no expression indicating an intention to apply 
them to the State governments. This court cannot so apply them. 

We are of opinion that the provision in the fifth amendment to the 
Consitution, declaring that private property shall not be taken for 
public use wihout just compensation, is intended solely as a limita- 
tion on the exercise of power by the government of the United 



Selected Cases in Constitutional Law. 169 

States, and is not applicable to the legislation of the States. We 
are therefore of opinion, that there is no repugnancy 'between the 
several acts of the general assembly of Maryland, given in evidence 
by the defendants at the trial of this cause, in the court of that State, 
and the Constitution of the United States. This court, therefore, 
has no jurisdiction of the cause ; and it is dismissed. 



Sub-Section B. 

Meaning of Ex Post Facto. 

CALDER v. BULL. 

3 Dallas, 386. 1798. 

One Morrison made a will in 1779, giving certain lands in Con- 
necticut to the wife of Bull. The will was offered for probate in 
1793, but probate was refused, and the wife of Calder, as Morri- 
son's heiress at law, was held to be entitled to the property. Under 
the statute law of Connecticut at that time no appeal could be taken 
from the decree of the probate court after eighteen months had 
elapsed from the date of the decree. In 1795, more than two years 
after the decree refusing probate had been entered, the State legis- 
lature passed an act setting aside the decree of the probate court and 
granting a new hearing in the matter of Morrison's will. The re- 
hearing was subsequently had, the will was admitted to probate and 
the wife of Bull, as devisee, was declared entitled to the property. 
The Supreme Court of Errors of Connecicut found that there was 
no error in the decree of the probate court at the rehearing. Mrs. 
Calder then claimed that Mrs. Bull's right was barred by the lapse 
of eighteen months from the date of the decree refusing probate; 
that the subsequent statute providing for the rehearing was an ex 
post facto law and therefore unconstitutional, under Art I, sec. 10 
of the Constitution, which prohibits a State from passing an ex 
post facto law. 

Appeal was taken to the United States Supreme Court. 

Mr. Justice Chase delivered the following opinion : 

* * * * The Constitution of the United States , Art. 1, s. 9, pro- 
hibits the legislature of the United States from passing any ex post 
facto law ; and in Sec. 10 lays several restrictions on the authority 
of the legislatures of the several States ; and among them, "that no 
State shall pass any ex post facto law. 

It may be remembered that the legislatures of several of the States, 
to wit, Massachusetts, Pennsylvania, Delaware, Maryland, and North 
and South Carolina, are expressly prohibited, by their State constitu- 
tions, from passing any ex post facto law. 

I shall endeavor to show what law is to be consideredan ex post 
facto law, within the words and meaning of the prohibition in the 
Federal Constitution. The prohibition, "that no State shall pass 
any ex post facto law," necessarily requires some explanation; for 



;170 Selected Gases in Constitutional Law. 

naked and without explanation it is unintelligible, and means noth- 
ing. Literally, it is only that a law shall not be passed concerning, 
and after the fact, or thing done, or action committed. I would ask, 
what fact; of what nature or kind; and by whom done? That 
Charles L, king of England, was beheaded; that Oliver Cromwell 
was protector of England ; that Louis XVI., late king of France, was 
guillotined, — all facts that have happened ; but it would be non- 
sense to suppose that the States were prohibited from making any 
law after either of these events, and with reference thereto. The 
prohibition in the letter is not to pass any law concerning and after 
the fact, but the plain and obvious meaning and intention of the pro- 
hibition is this, that the legislatures of the several States shall not 
pass laws after a fact done by a subject, or citizen, which shall have 
relation to such fact, and shall punish him for having done it. The 
prohibition, considered in this light, is an additional bulwark in fa- 
vor of the personal security of the subject, to protect his person from 
punishment by legislative acts, having a retrospective operation. I 
do not think it was inserted to secure the citizen in his private 
rights, of either property or contracts. The prohibitions not to make 
anything but gold and silver coin a tender in payment of debts, and 
not to pass any law impairing the obligation of contracts, were in- 
serted to secure private rights ; but the restriction not to pass any ex 
post facto law, was to secure the person of the subject from injury 
or punishment, in consequence of such law. If the prohibition against 
making ex post facto laws was intended to secure personal rights 
from being effected or injured by such laws, and the prohibition is 
sufficiently extensive for that object, the other restraints I have 
enumerated were unnecessary, and therefore improper, for both of 
them are retrospective. 

I will state what laws I consider ex post facto laws, within the 
words and the intent of the prohibition, ist. Every law that makes 
an action done before the passing of the law, and which was inno- 
cent when done, criminal ; and punishes such action. 2d. Every 
law that aggravates a crime, or makes it greater than it was. when 
committed. 3d. Every law that changes the punishment, and inflicts 
a greater punishment than the law annexed to the crime, when com- 
mitted. 4th. Every law that alters the legal rules of evidence, and 
receives less or different testimony than the law required at the time 
of the commission of the offence, in order to convict the offender. 
All these and similar laws are manifestly unjust and oppressive. In 
my opinion, the true distinction is between ex post facto laws and 
retrospective laws. Every ex post facto law must necessarily be 
retrospective, but every retrospective law is not an ex post facto 
law : the former only are prohibited. Every law that takes away or 
impairs rights vested, agreeably to existing laws, is retrospective, 
and is generally unjust, and may be oppressive ; and it is a good gen- 
eral rule that a law should have no retrospect ; but there are cases in 
which laws may justly; and for the benefit of the community, and 
also of individuals, relate to a time antecedent to their commence- 
ment ; as statutes of oblivion, or of pardon. They are certainly 
retrospective, and literally both concerning and after the facts com- 



Selected Cases in Constitutional Law. 171 

mitted. But I do not consider "any law ex post facto, within the pro- 
hibition, that mollifies the rigor of the criminal law ; but only those 
that create, 01 aggravate, the crime, or increase the punishment, or 
change the rules of evidence, for the purpose of conviction. Even- 
law that is to have an operation before the making thereof, as to 
commence at an antecedent time, or to save time from the statute of 
limitations, or to excuse acts which were unlawful, and before com- 
mitted, and the like, is retrospective. But such laws may be proper 
or necessary, as the case may be. There is a great and apparent 
difference between making an unlawful act lawful, and the making 
an innocent action criminal, and punishing it as a crime. The ex- 
pressions "ex post facto laws," are technical, they had been in use 
long before the Revolution, and had acquired an appropriate mean- 
ing, by legislators, lawyers, and authors. The celebrated and judi- 
cious Sir William Blackstone, in his Commentaries, considers an ex 
post facto law precisely in the same light I have done. His opinion 
is confirmed by his successor, Mr. Woodeson, and by the author of 
the Federalist, whom I esteem superior to both, for his extensive and 
accurate knowledge of the true principles of government. 

[The other judges of the court delivered opinions and the decree 
of the Supreme Court of Errors of Connecticut was affirmed, all 
concurring. ] 

Note. See also case of Ex parte Garland, page 44. 



Sub-Section C. 

Meaning of Due Process of Law. 

MURRAY'S LESSEE v. THE HOBOKEN LAND AND 

IMPROVEMENT COMPANY. 

18 Howard, 272. 1855. 

The Act of Congress of May 15, 1820, provided for the collection 
of sums due the United States from a delinquent tax collector by 
a summary process. This process consisted of an auditing of ac- 
counts, a certification of any deficiency by the comptroller, the is- 
suing of a warrant of distress by the Solicitor of the Treasury and 
a sale thereunder by an United States marshal of the delinquent's 
property. In accordance with this act the account of Samuel Swart- 
wout, collector of customs for the port of New York for eight years 
before the 29th of March, 1838, was audited and was found to be 
delinquent in the sum of $1,374,119.65. A warrant was issued by 
the Solicitor of the Treasury, by virtue of which the marshal of the 
United Statess old Swartwout's property on June 1, 1839, to the 
defendants. The plaintiff's claim the same property under a levy of 
execution of April 10, 1839, and brought an action of ejectment. The 
plaintiffs claimed that the mode of procedure provided for by the 



&72 Selected Cases in Constitutional Law. 

Act of 1820, resulted in a deprivation of property without due proc- 
ess of law within the meaning of the Fifth amendment to the Consti- 
tution of the United States, and that as the proper method to pursue 
was an ordinary suit at law, no title passed to the defendants. The 
Circuit Court was divided in its opinion, and the case was certified 
to the United States Supreme Court. 

Mr. Justicf Curtis delivered the opinion of the court. 

* * * The words, "due process of law,"were undoubtedl} intended 
to convey the same meaning as the words, "by the law of the land," 
in Magna Charta. Lord Coke, in his commentary on those words, 
says they mean due process of law. The constitutions which had 
been adopted by the several States before the formation of the Fed- 
eral Constitution, following the language of the great charter, more 
closely, generally contained the words, "but by the judgment of his 
peers, or the law of the land." The ordinance of Congress of July 
13, 1787, for the government of the territory of the United States 
northwest of the river Ohio, used the same words. * * * * 

That the warrant now in question is legal process, is not denied. 
It was issued in conformity with an act of Congress. But is it 
"due process of law"? The Constitution contains no description of 
those processes which it was intended to allow or forbid. It does 
not even declare what principles are to be applied to ascertain 
whether it be due process. It is manifest that it was not left to 
the legislative power to enact any process which migh be devised. 
The article is a restraint on the legislative as well as on the execu- 
tive and judicial powers of the government, and cannot be so con- 
strued as to leave Congress free to make any process "due process of 
law," by its mere will. To what principles, then, are we to resort 
to ascertain whether this process, enacted by Congress, is due 
process? To this the answer must be twofold. We must examine 
the Constitution itself, to see whether this process be in conflict 
with any of its provisions. If not found to be so, we must look to 
those settled usages and modes of proceeding existing in the com- 
mon and statute law of England, before the emigration of our an- 
cestors, and which are shown not to have been unsuited to their 
civil and political condition by having been acted on by them after 
the settlement of this country. We apprehend there has been no 
period, since the establishment of the English monarchy, when there 
has not been, by the law of the land, a summary method for the 
recovery of debts due to the crown, and especially those due from 
receivers of the revenues. It is difficult, at this day, to trace with 
precision all the proceedings had for these purposes in the earliest 
ages in the common law. That they were summary and severe, and 
had been used for purposes of oppression, is inferable from the fact 
that one chapter of Magna Charta treats of their restraint. It de- 
clares : "We or our bailiffs shall not seize any land or rent for any 
debt as long as the present goods and chattels of the debtor do suf- 
fice to pay the debt, and the debtor himself be ready to satisfy there- 
for. Neither shall the pledges of the debtor be distrained, as long 



Selected Cases in Constitutional Law. 173 : 

as the principal debtor is sufficient for the payment of the debt ; and 
if the principal debtor fail in payment of the debt, having- nothing 
wherewith to pay, or will not pay where he is able, the pledges shall 
answer for the debt. And if they will, they shall have the lands and 
rents of the debtor until they be satisfied of the deb't which they be- 
fore paid for him, except that the principal debtor can show himself 
to be acquitted against the said sureties." 

By the common law, the body, lands, and goods of the king's 
debtor were liable to be levied on to obtain payment. In conform- 
ity with the above provision of Magna Charta a conditional writ 
was framed, commanding the sheriff to inquire of the goods and 
chattels of the debtor, and, if they were insufficient, then to extend 
on the lands. * * * * 

This brief sketch of the modes of proceeding to ascertain and 
enforce payment of balances due from receivers of the revenue in 
England is sufficient to show that the methods of ascertaining the 
existence and amount of such debts, and compelling their payment, 
have varied widely from the usual course of the common law on 1 
other subjects; and that, as respects such debts due from such of- 
ficers, "the law of the land" authorized the employment of auditors, 
and an inquisition without notice, and a species of execution bear- 
ing a very close resemblance to what is termed a warrant of dis- 
tress in the Act of 1820, now in question. 

It is certain that this diversity in "the law of the land" between 
public defaulters and ordinary debtors was understood in this coun- 
try, and entered into the legislation of the colonies and provinces, 
and more especially of the States, after the declaration of inde- 
pendence and before the formation of the Constitution of the United' 
States. Not only was the process of distress in nearly or quite 
universal use for the collection of taxes, but what was generally 
termed a warrant of distress, running against the body, goods, and" 
chattels of defaulting receivers of public money, was issued to some 
public officer, to whom was committed the power to ascertain the 
amount of the deftult, and by such warrant proceed to collect it. * 
* * Tested by the common and statute law of England prior to the- 
emigration of our ancestors, and by the laws of many of the States 
at the time of the adoption of this amendment, the proceedings 
authorized by the Act of 1820 cannot be denied to be elite process 
of law, when applied to the ascertainment and recovery of balances 
due to the government from a collector of customs, unless there ex- 
ists in the Constitution some other provision which restrains Con- 
gress from authorizing such proceedings. For, though "due process 
of law" generally implies and includes actor, reus, judex, regular- 
allegations, opportunity to answer, and a trial according to some 
settled course of judicial proceedings, yet this is not univer- 
sally true. There may be, and we have seen that there are, cases 
under the law of England after Magna Charta, and as it was brought 
to this country and acted on here, in which process, in its nature 
final, issues against the body, lands and goods of certain public deb- 
tors without any such trial ; and this brings us to the question,. 



174 Selected Cases in Constitutional Law. 

whether those provisions of the Constitution which relate to the ju- 
dicial power are incompatible with the proceeding's? * * * * 

Among the legislative powers of Congress are the powers "to lay 
and collect taxes, duties, imposts, and excises; to pay the debts and 
provide for the common defence and welfare of the United States ; 
to raise and support armies ; to provide and maintain a navy ; and 
to make all laws which may be necessary and proper for carrying 
into execution those powers." What officers should be appointed 
to collect the revenue thus authorized to be raised, and to disburse 
it in payment of the debts of the United States ; what duties should 
be required of them ; when and how, and whom they should ac- 
count, and what security they should furnish ; and to what reme- 
dies they should be subjected to enforce the proper discharge of 
their duties. Congress was to determine. In the exercise of their 
powers, they have required collectors of customs to be appointed ; 
made it incumbent on them! to account, from time to time, with 
certain officers of the Treasury Department, and to furnish sureties, 
by bond, for the payment of all balances of the public money which 
may become due from them. And by the Act of 1820, now in ques- 
tion, they have undertaken to provide summary means to compel 
these officers — and in case of their default, their sureties — to pay 
such balances of the public money as may be in their hands. 

The power to collect and disburse revenue, and to make all laws 
which shall be necessary and proper for carrying that power into 
effect, includes all known and appropriate means of effectually col- 
lecting and disbursing that revenue, unless some such means should 
be forbidden in some other part of the Constitution. The power 
"has not been exhausted by the receipt of the money by the collector. 
Its purpose is to raise money and use it in payment of the debts of 
the government ; and, whoever may have possession of the public 
money, until it is actually disbursed, the power to use those known 
and appropriate means to secure its due application continues. 

As we have already shown, the means, provided by the Act of 1820 
do not differ in principle from those employed in England from 
remote antiquity — and in many of the States, so far as we know- 
without objection — for this purpose, at the time the Constitution 
was formed. It may be added, that probably there are few govern- 
ments which do or can permit their claims for public taxes, either 
on the citizen or the officer employed for their collection or dis- 
bursement, to become subjects of judicial controversy, according to 
the course of the law of the land. Imperative necessity has forced 
a distinction between such claims and all others, which has some- 
times been carried out by summary methods of proceeding, and 
sometimes by systems of fines and penalties, but always in some way 
observed and yielded to. 

(The court came to the conclusion that the process under which 
the premises in question were sold to the defendants was due proc- 
ess of law and gave judgment accordingly.) 



Selected Cases in Constitutional Law. 175 



CHAPTER III. 
THE JUDICIAL DEPARTMENT. 

SECTION I. 
The Original Jurisdiction of the Supreme Court. 

Sub-Section A. 

Cases affecting Ambassadors, other Public Ministers and Consuls. 

BORS v. PRESTON. 

in U. S., 252. 1884. 

This action was brought in the Circuit Court of the United States 
for the southern district of New York. The plaintiff, Preston, was 
a citizen of the State of New York, while the defendant is the con- 
sul, at the port of New York, for the Kingdom of Norway and 
Sweden. The action was brought to recover damages for a conver- 
sion by defendant of certain articles of merchandise belonging to 
the plaintiff. A verdict was rendered in favor of the plaintiff for 
$7,313.10. The question was raised as to whether, under the Con- 
stitution and laws of the United States, a Federal circuit court may, 
under any circumstances, hear and determine a suit against the con- 
sul of a foreign government. 

Mr. Justice Harlan delivered the opinion of the court. 

* * * * The Constitution declares that "the judicial power of the 
United States shall extend * * * * to all cases affecting ambassadors 
or other public ministers and consuls ;" "to controversies between 
citizens of a State and foreign citizens or subjects ;" that "in all 
cases affecting ambassadors, other public ministers and consuls * 
* * * the Supreme Court shall have original jurisdiction ;" and that in 
all other cases previously mentioned in the same clause "the Su- 
preme Court shall have appellate jurisdiction, both as to law and 
fact, with such exceptions and under such regulations as the Con- 
gress shall make." 

The Judiciary Act of 1789 invested the District Courts of the 
United States with "jurisdiction, exclusively of the courts of the 
several State?, of all suits against consuls or vice-consuls," except 
for offences of a certain character ; this court,with "original, but not 
exclusive, jurisdiction of all suits * * * in which a consul or vice- 
consul shall be a party ;" and the Circuit Courts, with jurisdiction of 
civil suits in which an alien is a party. In this act we have an affirm- 
ance by the first Congress — many of whose members participated 
in the convention which adopted the Constitution, and were, there- 



176 Selected Cases in Constitutional Law. 

fore, conversant with the purposes of its framers — of the principle 
that the original jurisdiction of this court of cases in which a consul 
or vice-consul is a party, is not necessarily exclusive, and that the 
subordinate courts of the Union may be invested with jurisdiction of 
cases affecting such representatives of foreign governments. On a 
question of constitutional construction, this fact is entitled to great 
weight. 

Very early after the passage of that act the case of United States 
v. Ravara, 2 Dall. 297, was tried in the Circuit Court of the United 
States for the District of Pennsylvania, before Justices Wilson and 
Iredell of this court, and the district judge. It was an indictment 
against a consul for a misdemeanor, of which, it was claimed, the 
Circuit Court had jurisdiction under the eleventh section of the Ju- 
diciary Act, giving Circuit Courts "exclusive cognizance of all crimes 
and offences cognizable under the authority of the United States," 
except where that act "otherwise provides, or the laws of the Unit- 
ed States shall otherwise direct, and concurrent jurisdiction with the 
District Courts of the crimes and offences cognizable therein." In 
behalf of the accused it was contended that this court, in virtue of 
the constitutional grant to it of original jurisdiction in all cases af- 
fecting consuls, had exclusive jurisdiction of the prosecution against 
him. Mr. Justice Wilson and the district judge concurred in over- 
ruling this objection. They were of opinion that although the Con- 
stitution invested this court with original jurisdiction in cases af- 
fecting consuls, it was competent for Congress to confer concurrent 
jurisdiction, in those cases, upon such inferior courts as might, by 
law, be established. Mr. Justice Iredell dissented, upon the ground 
that the word "original," in the clause of the Constitution under ex- 
amination, meant exclusive. The indictment was sustained, and the 
defendant upon the final trial, at which Chief Justice Jay presided, 
was found guilty. He was subsequently pardoned on condition that 
he would surrender his commission and exequatur. 

In United States v. Ortega, 1 1 Wheat. 467, — which was a criminal 
prosecution, in a Circuit Court of the United States, for the offence 
of offering personal violence to a public minister, contrary to the law 
of nations and the Act of Congress, — one of the questions certified 
for decision was whether the jurisdiction conferred by the Constitu- 
tion upon this court, in cases affecting ambassadors or other public 
ministers and consuls, was not only original but exclusive of the Cir- 
cuit Courts. But its decision was waived and the case determined 
upon another ground. Of that case it was remarked by Chief Jus- 
tice Taney, in Gittings v. Crawford, Taney's Dec. 1, 5, that an ex- 
pression of opinion upon that question would not have been waived 
had the court regarded it as settled by previous decisions. 

In Davis v. Packard, upon error to the Court for the 
Correction of Errors of the State of New York, the precise question 
presented was whether, under the Constitution and laws of the 
United States, a State court could take jurisdiction of civil suits 
against foreign consuls. It was determined in the negative, upon 
the ground that by the ninth section of the Act of 1789 jurisdiction 



Selected Cases in Constitutional Law. 177 

was given to the District Courts of the United States, exclusively of 
the courts of the several States, of all suits against consuls and vice- 
consuls, except for certain offences mentioned in the act. The juris- 
diction of the State courts was denied because — and no other reason 
wa;s assigned — jurisdiction had been given to the District Courts of 
the United States exclusively of the former courts ; a reason which 
probably would not have been given had the court, as then organized , 
supposed that the constitutional grant of original jurisdiction to this 
court in all cases affecting consuls, deprived Congress of power to 
confer concurrent original jurisdiction, in such cases, upon the sub- 
ordinate courts of the Union. It is not to be supposed that the clause 
of the Constitution giving original jurisdiction to this court in cases 
affecting consuls, was overlooked, and, therefore, the decision, in 
that case, may be regarded as an affirmance of the constitutionality 
of the Act of 1789, giving original jurisdiction in such cases, also, 
to District Courts of the United States. 

In St. Luke's Hospital v. Barclay, 3 Blatch. 259, which was a 
suit in equity in the Circuit Court of the United States for the South- 
ern District of New York, the question was distinctly raised whether 
the consular character of the alien defendant exempted him from the 
jurisdiction of the Circuit Courts. The jurisdiction of the Circuit 
Court was maintained, the opinion of the court being that the juris- 
diction of the District Courts was made by statute exclusive only of 
the State court's, and that under the eleventh section of the act of 
1789, the defendant being an alien, — no exception being made therein 
as to those who were consuls, — was amenable to a suit in the Circuit 
Court brought by a citizen. Subsequently the question was reargued 
before Mr. Justice Nelson and the district judge, and the proposi- 
tion was pressed that the defendants could not be sued except in 
this court or in some District Court. But the former ruling was 
sustained. * * * * 

(In Gittings v. Crawford, Taney's Dec. 1,) the former adjudi- 
cations of this and other courts of the Union were there examined, 
and the conclusion reached — and in that conclusion we concur — that, 
as Congress was not expressly prohibited from giving original juris- 
diction in cases affecting consuls to the inferior judicial tribunals of 
the United States, neither public policy nor convenience would justi- 
fy the court in implying such prohibition, and upon such implica- 
tion ,pronounce the act of 1789 to be unconstitutional and void. Said 
Chief Justice Taney: "If the arrangement and classification of the 
subjects of jurisdiction into appellate and original, as respects the 
Supreme Court do not exclude that tribunal from appellate power 
in the cases where original jurisdiction is granted, can it be right, 
from the same clause, to imply words of exclusion as respects other 
courts whose jurisdiction is not there limited or prescribed, but left 
for the future regulation of Congress ? The true rule in this case is, 
I think, the rule which is constantly applied to ordinary acts of leg- 
islation, in which the grant of jurisdiction over a certain subject- 
matter to one court, does not, of itself, imply that that jurisdiction 
is to be exclusive. * * * * 



178 Selected Cases in Constitutional Law. 

It is thus seen that neither the Constitution nor any Act of Con- 
gress defining the powers of the Courts of the United States has 
made the jurisdiction of this court, or of the District Courts, ex- 
clusive of the Circuit Courts in suits brought against persons who 
hold the position of consul, or in suits of proceedings in which a 
consul is a party. The jurisdiction of the latter courts, conferred 
without qualification, of a controversy between a citizen and an alien, 
is not defeated by the fact that the alien happens to be the consul of 
a foreign government. Consequently, the jurisdiction of the court 
below cannot be questioned upon the ground simply that the defend- 
ant is the consul of the Kingdom of Norway and Sweden. 

(The court then proceeded to discuss a matter of pleading aris- 
ing in the record of the case and remanded the cause for further 
proceedings consistent with this opinion.) 



SECTION II. 

The Appellate Jurisdiction of the Supreme Court. 

Sub- Section A. 
Over State Courts. 

MARTIN v. HUNTER'S LESSEE, 

i Wheaton, 304. 1816. 

This was a writ of error to the Court of Appeals of the State of 
Virginia, founded upon the refusal of that court to obey the mandate 
of the Supreme Court of the United States, requiring the judgment 
rendered in this same cause to be carried into execution. The fol- 
lowing is the judgment of the Court of Appeals of Virginia render- 
ed on the mandate, "The court is unanimously of opinion that the 
appellate power of the Supreme Court of the United States does not 
extend to this court under a sound construction of the Constitution 
of the United States. * * * That the writ of error in this cause was 
improvidently allowed under the authority of that that; (Act of 
Congress establishing judicial courts and extending appellate juris- 
diction of the Supreme Court,) that the proceedings thereon in the 
Supreme Court were coram non judice in relation to this court and 
that obedience to its mandate be declined by the court." The orig- 
inal suit was an action of ejectment to determine the title to certain 
lands in Virginia, which lands were claimed by one Denny Fair- 
fax, a British subject, whose title was protected, it was asserted, by 
the Treaty of 1783 with Great Britain. The principal question, 
however, related to the appellate jurisdiction of the Supreme Court 
of the United States. 



Selected Cases in Constitutional Law. 179 

Mr. Justice Story delivered the opinion of the court. 

* * * This leads us to the consideration of the great question as to 
the nature and extent of the appellate jurisdiction of the United 
States. We have already seen that appellate jurisdiction is given by 
the Constitution to the Supreme Court in all cases where it has not 
original jurisdiction, subject, however, to such exceptions and reg- 
ulations as Congress may prescribe. It is, therefore, capable of 
embracing every case enumerated in the Constitution, which is not 
exclusively to be decided by way of original jurisdiction. But the 
exercise of appellate jurisdiction is far from being limited by the 
terms of the Constitution to the Supreme Court. There can be no 
doubt that Congress may create a succession of inferior tribunals, 
in each of which it may vest appellate as well as original jurisdic- 
tion. The judicial power is delegated by the Constitution in the 
most general terms, and may, therefore, be exercised by Congress 
under every variety of form, of appellate or original jurisdiction. 
And as there is nothing in the Constitution which restrains or 
limits this power, it must, therefore, in all other cases, subsist in 
the utmost latitude of which, in its own nature, it is susceptible. 

As, then, by the terms of the Constitution, the appellate jurisdic- 
tion is not limited as to the Supreme Court, and as to this court it 
may be exercised in all other cases than those of which it has original 
cognizance, what is there to restrain its exercise over State tribunals 
in the enumerated cases ? The appellate power is not limited by 
the terms of the third article to any particular courts. The words 
are, "the judicial power (which includes appellate power) shall ex- 
tend to all cases," &c, and "in all other cases before mentioned the 
Supreme Court shall have appellate jurisdiction." It is the case, 
then, and not the court, that gives the jurisdiction. If the judicial 
power extends to the case, it will be in vain to search in the letter 
of the Constitution for any qualification as to the tribunal where it 
depends. It is incumbent, then, upon those who assert such a qual- 
ification to show its existence by necessary implication. If the text 
be clear and distinct, no restriction upon its plain and obvious im- 
port ought to be admitted, unless the inference be irresistible. 

If the Constitution meant to limit the appellate jurisdiction to 
cases pending in the courts of the United States, it would necessarily 
follow that the jurisdiction of these courts would, in all the cases 
enumerated in the Constitution, be exclusive of State tribunals. 
How otherwise could the jurisdiction extend to all cases arising 
under the Constitution, laws, and treaties of the United States or 
to all cases of admiralty and maritime jurisdiction? If some of 
these cases might be entertained by State tribunals, and no appel- 
late jurisdiction as to therm should exist, then the appellate power 
would not extend to all, but to some, cases. If State tribunals 
might exercise concurrent jurisdiction over all or some of the other 
classes of cases in the Constitution without control, then the appel- 
late jurisdiction of the United States might, as to such cases, have 
no real existence, contrary to the manifest intent of the Constitution. 
Under such circumstances, to give effect to the judicial power, it 



180 Selected Cases in Constitutional Law. 

must be construed to be exclusive ; and this not only when the 
casus foederis should arise directly, but when it should arise, inci- 
dentally, in cases pending in State courts. This construction would 
abridge the jurisdiction of such court far more than has been ever 
contemplated in any act of Congress. 

On the other hand, if, as has been contended, a discretion be 
vested in Congress to establish, or not to establish, inferior courts 
at their own pleasure, and Congress should not establish such courts, 
the appellate jurisdiction of the Supreme Court would have nothing 
to act upon, unless it could act upon cases pending in the State 
courts. Under such circumstances, it must be held that the appel- 
late power would extend to State courts ; for the Constitution is per- 
emptory that it shall extend to certain enumerated cases, which cases 
could exist in no other courts. Any other construction, upon this 
supposition, would involve this strange contradiction, that a discre- 
tionary power vested in Congress, and which they might rightfully 
omit to exercise, would defeat the absolute injunctions of the Con- 
stitution in relation to the whole appellate power. 

But it is plain that the framers of the Constitution did contem- 
plate that cases within the judicial cognizance of the United States 
not only might but would arise in the State courts, in the exercise 
of their ordinary jurisdiction. With this view the sixth article de- 
clares, that "this Constitution, and the laws of the United States 
which shall be made in pursuance thereof, and all treaties made, or 
which shall be made, under the authority of the United States, shall 
be the supreme law of the land, and the judges in every State shall 
be bound thereby, anything in the Constitution or laws of any State 
to the contrary notwithstanding." It is obvious that this obligation 
is imperative upon the State judges in their official, and not merely 
in their private, capacities. From the very nature of their judicial 
duties they would be called upon to pronounce the law applicable to 
the case in judgment. They were not to decide merely according to 
the laws or Constitution of the State, but according to the Constitu- 
tion, laws, and treaties of the United States, "the supreme law of the 
land." * * * * 

It must, therefore, be conceded that the Constitution not only 
contemplated, but meant to provide for cases within the scope of 
the judicial power of the United States, which might yet depend be- 
fore State tribunals. It was foreseen that, in the exercise of their 
ordinary jurisdiction, State courts would incidentally take cogni- 
zance of cases arising under the Constitution, the laws, and treaties 
of the United States. Yet to all these cases the judicial power, by 
the very terms of the Constitution, is to extend. It cannot extend 
by original jurisdiction if that was already rightfully and exclusive- 
ly attached in the State courts, which (as has been already shown) 
may occur; it must therefore extend by appellate jurisdiction or not 
at all. . It would seem to follow that the appellate power of 
the United States must, in such cases, extend to State tribunals ; 
and if in such cases, there is no reason why it should not equally 
attach upon all others within the purview of the Constitution. 



Selected Cases in Constitutional Law. 181 

It has been argued that such an appellate jurisdiction over State 
courts is inconsistent with the genius of our governments, and the 
spirit of the Constitution. That the latter was never designed to 
act upon State sovereignties, but only upon the people, and that, if 
the power exists, it will materially impair the sovereignty off the 
States, and the independence of their courts. We cannot yield to 
the force of this reasoning; it assumes principles which we cannot 
admit and draws conclusions to which we do not yield our assent. 

It is a mistake that the Constitution was not designed to operate 
upon States, in their corporate capacities. It is crowded with pro- 
visions which restrain or annul the sovereignty of the States in some 
of the highest branches of their prerogatives. The tenth section Si 
the first article contains a long list of disabilities and prohibitions 
imposed upon the States. Surely, when such essential portions of 
State sovereignty are taken away, or prohibited to be exercised, it 
cannot be correctly asserted that the Constitution does not act upon 
the State. The language of the Constitution is also imperative 
upon the States, as to the performance of many duties. It is im- 
perative upon the State legislatures to make laws prescribing the 
time, places, and manner of holding elections for senators and rep- 
resentatives, and for electors of President and Vice-President. And 
in these, as well as some other cases, Congress have a right to revise, 
amend, or supersede the laws which may be passed by State legisla- 
tures. When, therefore, the States are stripped of some of the 
"highest attributes of sovereignty, and the same are given to the 
United States ; when the legislatures of the States are, in some 
respects, under the control of Congress, and in every case are, under 
the Constitution, bound by the paramount authority of the United 
States ; it is certainly difficult to suport the argument that the 
appellate power over the decisions of State courts is contrary to the 
genius of our institutions. The courts of the United States can, 
without question, revise the proceedings of the executive and legis- 
lative authorities of the States, and if they are found to be contrary 
to the Constitution, may declare them to be of no legal validity. 
Surely, the exercise of the same right over judicial tribunals is not 
a higher or more dangerous act of sovereign power. 

Nor can such a right be deemed to impair the independence of 
State judges. It is assuming the very ground in controversy to 
assert that they possess an absolute independence of the United 
States. In respect to the powers granted to the United States, they 
are not independent; they are expressly bound to obedience by the 
letter of the Constitution ; and if they should unintentionally tran- 
scend their authority, or misconstrue the Constitution, there is no 
more reason for giving their judgments an absolute or irresistible 
force, than for giving it to the acts of the other co-ordinate depart- 
ments of State sovereignty. * * * * 

It is further argued, that no great public mischief can result from 
a construction which shall limit the appellate power of the United 
States to cases in their own courts ; first, because State judges are 
.bound by oath to support the Constitution of the United States, 



182 Selected Cases in Constitutional Law. 

and must be presumed to be men of learning and integrity ; and, 
secondly, because Congress must have an unquestionable right to 
remove all cases within the scope of the judical power, from the 
State courts to the courts of the United States, at any time before 
final judgment, though not after final judgment, As to the first 
reason, — admitting that the judges of the State courts are, and 
always will be, of as much learning, integrity, and wisdom as those 
of the courts of the United States (which we very cheerfully admit), 
it does not aid the argument. It is manifest that the Constitution 
has proceeded upon a theory of its own, and given or withheld 
powers according to the judgment of the American people, by whom 
it was adopted. We can only construe its powers, and cannot in- 
quire into the policy or principles which induced the grant of them, 
The Constitution has presumed (whether rightly or wrongly we do 
not inquire) that State attachments, State prejudices, State jeal- 
ousies, and State interests, might sometimes obstruct, or control, or 
be supposed to obstruct or control, the regular administration of 
justice. Hence, in controversies between States; between citizens 
of different States ; between citizens claiming grants under dif- 
ferent States ; between a State and its citizens, or foreigners, and 
between citizens and foreigners, it enables the parties, under the 
authority of Congress, to have the controversies heard, tried, and 
determined before the national tribunals. No other reason than 
that which has been stated can be assigned, why some, at 
least, of those cases should not have been left to the cognizance of 
the State courts. In respect to the other enumerated cases — the 
cases arising under the Constitution, laws, and treaties of the United 
States, cases affecting ambassadors and other public ministers, 
and cases of admiralty and maritime jurisdiction — reasons of a 
higher and more extensive nature, touching the safety, peace, and 
sovereignty of the nation, might well justify a grant of exclusive 
jurisdiction. 

This is not all A motive of another kind, perfectly compatible 
with the most sincere respect for State tribunals, might induce the 
grant of appellate power over their decisions. That motive is the 
importance, and even necessity of uniformity of decisions through- 
out the whole United States, upon all subjects within the purview 
of the Constitution. Judges of equal learning and integrity, in 
different States, might differently interpret a statute, or a treaty of 
the United States, or even the Constitution itself. If there were 
no revising authority to control these jarring and discordant judg- 
ments, and harmonize them into uniformity, the laws, the treaties, 
and the Constitution of the United States would be different in 
different States, and might perhaps never have precisely the same 
construction, obligation, or efficacy in any two States. The public 
mischiefs that would attend such a state of things would be truly 
deplorable ; and it cannot be believed that they could have escaped 
the enlightened convention which formed the Constitution. What, 
indeed, might then have been only prophecy has now become fact ; 



Selected Cases in Constitutional Law. 183 

and the appellate jurisdiction must continue to be the only adequate 
remedy for such evils. 

There is an additional consideration, which is entitled to great 
weight. The Constitution of the United States was designed for the 
common and equal benefit of all the people of the United States. 
The judicial power was granted for the same benign and salutary 
purposes. It was not to be exercised exclusively for the benefit of 
parties who might be plaintiffs, and would elect the national forum, 
but also for the protection of defendants who might be entitled to 
try their rights, or assert their privileges, before the same forum. 
Yet, if the construction contended for be correct, it will follow, that 
as the plaintiff may always elect the State court, the defendant may 
be deprived of all the security which the Constitution intended in 
aid of his rights. Such a state of things can, in no respect, be con- 
sidered as giving equal rights. To obviate this difficulty, we are 
referred to the power which it is admitted Congress possess to 
remove suits from State courts to the national courts ; and this forms 
the second ground upon which the argument we are considering 
has been attempted to be sustained. 

This power of removal is not to be found in express terms in any 
part of the Constitution ; if it be given, it is only given by implica- 
tion, as a power necessary and proper to carry into effect some 
express power. * * * 

On the whole, the court are of opinion that the appellate power 
of the United States does not extend to cases pending in the State 
courts ; and that the 25th section of the Judiciary Act , which auth- 
orizes the exercise of this jurisdiction in the specified cases, by a 
writ of error, is supported by the letter and spirit of the Consti- 
tution. We find no clause in that instrument which limits this power ; 
and we dare not interpose a limitation where the people have not 
been disposed to create one. 

Judgment of the Court oi Appeals of Virginia rendered on the 
mandate in this cause reversed. 



Sub- Section B. 

Suits Between States. 

NEW HAMPSHIRE v LOUISIANA 

NEW YORK v LOUISIANA 

108 U. S., 76. 1883. 

On the 18th of July, 1879, the legislature of New Hampshire pass- 
ed a statute which provided that whenever a citizen of the State 
should own a claim against another State of the United States, 
arising upon a written obligation to pay money which should be 
past due and unpaid, that such citizen could assign the claim to the 
State, and the Attorney-General of the State should institute a pro- 



184 Selected Cases in Constitutional Law. 

ceeding in the name of the State in the Supreme Court of the United 
States to recover the amount due. Under this act, certain bonds 
of the State of Louisiana were assigned to the State of New Hamp- 
shire by one of its citizens for the purpose of suit as contemplated 
in the act. A similar statute in New York, passed May 15, 1880, 
was the basis for a suit upon bonds of the same character, assign- 
ed to the State of New York by one of its citizens. The two cases 
were heard together. 

Mr. Chief Justice Waite delivered the opinion. . 

The first question we have to settle is whether, upon the facts 
shown, these suits can be maintained in this court. 

Art. III., sec. 2, of the Constitution provides that the judicial 
power of the United States shall extend to "controversies between 
two or more States," and ''between a State and a citizen of another 
State." By the same article and section it is also provided that in 
cases "in which a State shall be a party, the Supreme Court shall 
have original jurisdiction." By the Judiciary Act of 1789, c. 20, 
sec. 13, 1 Stat. 80, the Supreme Court was given "exclusive jurisdic- 
tion of all controversies of a civil nature, where a State is a party, 
except between a State and its citizens ; and except also between a 
State and citizens of another State, or aliens, in which latter case it 
shall have original but not exclusive jurisdiction." 

Such being the condition of the law, Alexander Chisholm, as ex- 
ecutor of Robert Farquar, commenced an action of assumpsit in this 
court against the State of Georgia, and process was served on the 
governor and Attorney-General. Chisholmi v. Georgia, 2 Dall. 419. 
On the nth of August, 1792, after the process was thus served, 
Mr. Randolph, the attorney-general of the United States, as counsel 
for the plaintiff, moved for a judgment by default on the fourth day 
of the next term, unless the State should then, after notice, show 
cause to the contrary. At the next term Mr. Ingersoll and Mr. 
Dallas presented a written remonstrance and protestation on behalf 
of the State against the exercise of jurisdiction, but in consequence 
of positive instructions they declined to argue the question. Mr. 
Randolph, thereupon, proceeded alone, and in opening his argument 
said, "I did not want the remonstrance of Georgia, to satisfy me that 
the motion which I have made is unpopular. Before the remon- 
strance was read, I had learnt from the acts of another State, whose 
will must always be dear to me, that she too condemned it." 

On the 19th of February, 1793, the judgment of the court was 
announced, and the jurisdiction sustained, four of the justices being 
in favor of granting the motion and one against it. All the justices 
who heard the case filed opinions, some of which were very elabo- 
rate, and it is evident the subject received the most careful consid- 
eration. Mr. Justice Wilson in his opinion uses this language, p. 
465:— 

"Another declared object (of the Constitution) is 'to establish 
justice.' This points, in a particular manner, to the judicial author- 
ity. And when we view this object in conjunction with the decla- 



Selected Cases in Constitutional Law. 185 

ration, 'that no State shall pass a law imparing the obligation of 
contracts/' we shall probably think, that this object points, in a par- 
ticular manner, to the jurisdiction of the court over the several 
States. What good purpose could this constitutional provision 
secure, if a State might pass a law impairing the obligations of its 
own contracts ; and be amenable for such a violation of right, to 
no controlling judiciary power?" 

And Chief Justice Jay, p. 479: — 

"The extension of the judiciary power of the United States to 
such controversies, appears to me to be wise, because it is honest, 
and because it is useful. It is honest, because it provides for doing 
justice without respect to persons, and by securing individual cit- 
izens, as well as States, in their respective rights, performs the prom- 
ise which every free government makes to every free citizen, of 
equal justice and protection. It is useful, because it is honest, 
because it leaves not even the most obscure and friendless citizen 
without means of obtaining justice from a neighboring State ; be- 
cause it obviates occassions of quarrels between States on account 
of the claims of their respective citizens ; because it recognizes and 
strongly rests on this great moral truth, that justice is the same 
whether due from one man or a million, or from a million to one 
man ; because it teaches and greatly appreciates the value of our 
free republican national government, which places all our citizens 
on an equal footing, and enables each and every of them to obtain 
justice without any danger of being overborne with the might and 
number of their opponents; and because it brings into action and 
enforces the great and glorious principle, that the people are the 
soyerign of this country, and consequently that fellow citizens and 
joint sovereigns cannot be degraded by appearing with each other 
in their own courts to have their controversies determined," 

Prior to this decision the public discussions had been confined to 
the power of the court, under the Constitution, to entertain a suit in 
favor of a citizen against a State ; many of the leading members of 
the convention arguing, with great force, against is. As soon as the 
decision was announced, steps were taken to obtain an amendment 
of the Constitution withdrawing jurisdiction. About the time fhe 
judgment was rendered, another suit was begun against Massachu- 
setts, and process served on John Hancock, the governor. This led 
to the convening of the general court of that Commonwealth, which 
passed resolutions instructing the senators and requesting the mem- 
bers of the House of Representatives from the State "to adopt the 
most speedy and effectual measures in their power to obtain such 
amendments in the Constitution of the United States as will remove 
any clause or articles of the said Constitution, which can be con- 
strued to imply or justify a decision that a State is compellable 
to answer in any suit by an individual or individuals in any courts 
of the United States." Other States also took active measures in the 
same direction, and, soon after the next Congress came together, 
the Eleventh Amendment to the Constitution was proposed, and 
afterwards ratified by the requisite number of States, so as to go 



186 Selected Cases in Constitutional Law. 

into effect on the 8th of January, 1798. That amendment is as fol- 
lows : — 

"The judicial power of the United States shall not be construed 
to extend to any suit in law or equity, commenced or prosecuted 
against one of the United States by citizens of another State, or by 
citizens and subjects of any foreign State/ 

Under the operation of this amendment the actual owners of the 
bonds and coupons held by New Hampshire and New York are 
precluded from prosecuting these suits in their own names. The 
real question, therefore, is whether they can sue in the name of their 
respective States, after getting the consent of the State, or, to put 
it in another way, whether a State can allow the use of its name 
in such a suit for the benefit of one of its citizens. 

The language of the amendment is, in effect, that the judicial 
power of the United States shall not extend to any suit commenced 
or prosecuted by citizens of one State against another State. No one 
can look at the pleadings and testimony in these cases without be- 
ing satisfied, beyond all doubt, that they were in legal effect com- 
menced, and are now prosecuted, solely by the owners of the bonds, 
and coupons. In New Hampshire, before the attorney-general is 
authorized to begin a suit, the owner of the bonds must deposit 
with him a sum of money sufficient to pay all costs and expenses, 
No compromise can be effected except with the consent of the 
owner of the claim. No money of the State can be expended in 
the proceeding, but all expenses must be borne by the owner, who 
may associate with the attorney-general such counsel as he chooses, 
the State being in no way responsible for fees. All moneys col- 
lected are to be kept by the attorney-general, as special trustee, 
separate and apart from the other moneys of the State, and paid 
over by him to the owner of the claim, after deducting all expenses 
incurred not before that time paid by the owner. The bill, 
although signed by the attorney-general, is also signed, and was 
evidently drawn, by the same counsel who prosecuted the suits 
for the bondholders in Louisina, and it is manifested in many ways 
that both the State and the attorney-general are only nominal 
actors in the proceeding. The bond owner, whoever he may be, 
was the promoter and is the manager of the suit. He pays the 
expenses, is the only one authorized to conclude a compromise, 
and if any money is ever collected, it must be paid to him without 
even passing through the form of getting into the treasury of the 
State. 

In New York no special provision is made for compromise or the 
employment of additional counsel, but the bondholder is required 
to secure and pay all expenses and gets all the money that is 
recovered. This State, as well as New Hampshire, is nothing more 
or less than a mere collecting agent of the owners of the bonds and 
coupons, and while the suits are in the names of the States, they 
are under the actual control of individual citizens, and are prose- 
cuted and carried on altogether by and for them. 

It is contended, however, that, notwithstanding the prohibition of 



Selected Cases in Constitutional Law. 187 

the amendment, the States may prosecute the suits, because, as the 
"sovereign and trustee of its citizens," a State is "clothed with the 
right and faculty of making an imperative demand upon another 
independent State for the payment of debts which it owes to citi- 
zens of the former." There is no doubt but one nation may, if 
it sees fit, demand of another nation the payment of a debt owing 
by the latter to a citizen of the former. Such power is well recog- 
nized as an incident of national sovereignty, but it involves also 
the national power of levying war and making treaties. As was 
said in the United States v. Diekelman, 92 U. S. 524, if a sovereign 
assumes the responsibility of presenting the claim of one of his 
subjects against another sovereign, the prosecution will be "as 
one nation proceeds against another, not by suits in the courts, as 
of right, but by diplomatic negotiation, or, if need be, by war." 

All the rights of the States as independent nations were surren- 
dered to the United States. The States are not nations, either as 
between themselves or towards foreign nations. They are sovereign 
within their spheres, but their sovereignty stops short of nationality. 
Their political status at home and abroad is that of States in the- 
United States. They can neither make war nor peace without the 
consent of the national government. Neither can they, except with 
like consent, "enter into any agreement or compact with another 
State." Art. 1, sec. 10, cl. 3. 

But it is said that, even if a State, as sovereign trustee for its 
citizens, did surrender to the national government its power of 
prosecuting the claims of its citizens against another State by force, 
it got in lieu the constitutional right of suit in the national courts. 
There is no principle of international law which makes it the duty of 
one nation to assume the collection of the claims of its citizens 
against another nation, if the citizens themselves have ample means 
of redress without the intervention of their government. * * * * Un- 
der the Constitution, as it was originally construed, a citizen of one 
State could sue another State in the courts of the United States for 
himself, and obtain the same relief his State could get for him 
if it could sue. Certainly, when he can sue for himself, there is 
no necessity for power in his State to sue in his behalf, and we 
cannot believe it was the intention of the framers of the Constitution 
to allow both remedies in such a case. Therefore, the special 
remedy, granted to the citizen himself, must be deemed to have been 
the only remedy the citizen of one State could have under the 
Constitution against another State for the redress of his grievances, 
except such as the delinquent State saw fit itself to grant. In other- 
words, the giving of the direct remedy to the citizen himself was 
equivalent to taking away any indirect remedy he might otherwise 
have claimed, through the intervention of his State, upon any prin- 
ciple of the law of nations. It follows that when the amendment 
took away the special remedy there was no other left. Nothing- 
was added to the Constitution by what was thus done. No power 
taken away by the grant of the special remedy was restored by the 
amendment. The effect of the amendment was simply to revoke 



188 Selected Cases in Constitutional Law. 

the new right that had been given, and leave the limitations to stand 
as they were. In the argument of the opinions filed by the several 
justices in the Chisholm case, there is not even an intimation that 
if the citizen could not sue, his State could sue for him. The evi- 
dent purpose of the amendment, so promptly proposed and finally 
adopted, was to prohibit all suits against a State by or for citizens 
of other States, or aliens, without the consent of the State to be 
sued ; and, in our opinion, one State cannot create a controversy 
with another State, within the meaning of that term as used in the 
judicial clauses of the Constitution, by assuming the prosecution 
of debts owing by the other State to its citizens. Such being the 
case we are satisfied that we are prohibited, both by the letter and 
the spirit of the Constitution, from entertaining these suits, and 

The bill in each of the cases is consequently dismissed. 



Sub-Section C. 

Suits Between the United States and a State. 

UNITED STATES v. TEXAS 

143 U. S., 621. 1892. 

This was an original suit brought in the Supreme Court of the 
United States by the Attorney-General on behalf of the United States 
against the State of Texas. The Act of May 2, 1890, which pro- 
vided a temporary government for the Territory of Oklahoma 
directed such a suit to be brought to establish the title of the United 
States to the country lying between the North and South Forks of 
the Red River, where the Indian Territory and the State of 
Texas adjoin. The State of Texas made an appearance to the action, 
but questioned the right of the Federal government to bring a suit 
against a State of the Union in one of its own courts. 

Mr. Justice Harlan delivered the opinion of the court. 

(The court first passed upon the question of whether a dispute 
as to boundary line between States or Territories was a political or 
judicial question and concluded: "It cannot with propriety be 
said that a question of boundary between a Territory of the United 
States and one of the States of the Union is of a political nature, 
and not susceptible of judicial determination by a court having 
jurisdiction of such a controversy.") 

The important question therefore, is, whether this court can, un- 
der the Constitution, take cognizance of an original suit brought by 
the United States against a State to determine the boundary be- 
tween one of the Territories and such State. Texas insists that no 
such jurisdiction has been conferred upon this court, and that the 
only mode in which the present dispute can be peaceably settled is 
by agreement, in some form, between the United States and that 
State. Of course, if no such agreement can be reached — and it 



Selected Cases in Constitutional Law. 189" 

seems that one is not probable — and if neither party will surrender 
its claim of authority and jurisdiction over the disputed territory, 
the result, according to the defendant's theory of the Constitution, 
must be that the United States, in order to effect a settlement of 
this vexed question of boundary, must bring* its suit in one of the 
courts of Texas, — that State consenting that its courts may be open 
for the assertion of claims against it by the United States, — or that, 
in the end, there must be a trial of physical strength between the 
government of the Union and Texas. The first alternative is un- 
warranted both by the letter and spirit of the Constitution. Mr. 
Justice Story has well said: "It scarcely seems possible to raise a 
reasonable doubt as to the propriety of giving to the national courts 
jurisdiction of cases in which the United States are a party. It 
would be a perfect novelty in the history of national jurisprudence, 
as well as of public law, that a sovereign had no authority to sue in 
his own courts. Unless this power were given to the United States, 
the enforcement of all their rights, powers, contracts, and privileges 
in their sovereign capacity would be at the mercy of the States. 
They must be enforced, if at all, in the State tribunals." Story, 
Const. § 1674. The second alternative, above mentioned, has no 
place in our constitutional system, and cannot be contemplated by 
any patriot except with feelings of deep concern. 

The cases in this court show that the framers of the Constitution 
did provide, by that instrument, for the judicial determination of 
all cases in law and equity between two or more States, including 
those involving questions of boundary. Did they omit to provide 
for the judicial determination of controversies arising between the 
United States and one or more of the States of the Union? This 
question is in effect answered by United States v. North Carolina, 
136 U. S. 211. That was an action of debt brought in this court by 
the United States against the State of North Carolina, upon certain 
bonds issued by that State. The State appeared, the case was deter- 
mined here upon its merits, and judgment was rendered for the State. 
It is true that no question was made as to the jurisdiction of this 
court, and nothing was therefore said in the opinion upon that sub- 
ject But it did not escape the attention of the court, and the judg- 
ment would not have been rendered except upon the theory that this 
court has original jurisdiction of a suit by the United States against 
a State. As, however, the question of jurisdiction is vital in this 
case, and is distinctly raised, it is proper to consider it upon its 
merits. 

The Constitution extends the judicial power of the United States 
"to all cases, in law and equity, arising under this Constitution, the 
laws of the United States and treaties made, or which shall be made, 
under their authority ; to all cases affecting ambassadors, other pub- 
lic ministers and consuls ; to all cases of admiralty and martime jur- 
isdiction ; to controversies to which the United States shall be a 
party ; to controversies between two or more States ; between a 
State and citizens of another State ; between citizens of different 
States ; between citizens of the same State claiming lands under 



190 Selected Cases in Constitutional Law. 

grants of different States, and between a State or the citizens thereof 
and foreign States, citizens or subjects. 

"In all cases, affecting ambassadors or other public ministers and 
consuls and those in which a State shall be party, the Supreme 
Court shall have original jurisdiction. In all the other cases before 
mentioned, the Supreme Court shall have appellate jurisdiction, both 
as to law and fact, with such exceptions, and under such regulations 
as the Congress shall make." Art. 3, § 2. "The judicial power 
of the United States shall not be construed to extend to any suit 
in law or equity, commenced or prosecuted against one of the United 
States by citizens of another State, or by citizens or subjects of any 
foreign State." nth Amendment. 

It is apparent upon the face of these clauses that in one class of 
cases the jurisdiction of the courts of the Union depends "on the 
character of the cause, whoever may be the parties," and, in the 
other, on the character of the parties, whatever may be the subject 
of controversy. Cohens v. Virginia, 6 Wheat. 264, 378, 393J. The 
present suit falls in each class, for it is, plainly, one arising under 
the Constitution, laws, and treaties of the United States, and, also, 
one in which the United States is a party. It is, therefore, one to 
which, by the express words of the Constitution, the judicial power 
of the United States extends. That a Circuit Court of the United 
States has not jurisdiction, under existing statutes, of a suit by the 
United States against a State, is clear ; for by the Revised Statutes 
it is declared — as was done by the Judiciary Act of 1789 — that 
"the Supreme Court shall have exclusive jurisdiction of all contro- 
versies of a civil nature where a State is a party, except between a 
State and its citizens, or between a State and citizens of other States 
or aliens, in which latter cases it shall have original, but not exclu- 
sive, jurisdiction." Rev. Stat. §687; Act of September 24, 1789, 
c. 20, §13; 1. Stat. 80. Such exclusive jurisdiction was given to 
this court, because it best comported with the dignity of a State, 
that a case in which it was a party should be determined in the high- 
est, rather than in a subordinate, judicial tribunal of the nation. 
Why then may not this court take original cognizance of the pres- 
ent suit involving a question of boundary between a Territory of the 
United States and a State? 

The words, in the Constitution, "in all cases *• * * * { n which a 
State shall be party, the Supreme Court shall have original jurisdic- 
tion," necessarily refer to all cases mentioned in the preceding 
clause in which a State may be made, of right, a party defendant, 
or in which a State may, of right, be a party plaintiff. It is ad- 
mitted that these words do not refer to suits brought against a State 
by its own citizens or by citizens of other States, or by citizens or 
subjects of foreign States, even where such suits arise under the 
Constitution, laws, and treaties of the United States, because the 
judicial power of the United States does not extend to suits of 
individuals against States. Hans v. Louisiana, 134 U. S. 1, and 
authorities there cited; North Carolina v. Temple, 134 U. S. 22, 30. 
It is. however, said that the words last quoted refer only to suits in 



Selected Cases in Constitutional Law. 191 

which a State is a party, and, in which, also, the opposite party is 
another State of the Union or a foreign State. This cannot be 
correct, for it must be conceded that a State can bring an original 
suit in this court against a citizen of another State. Wisconsin v. 
Pelican Ins. Co., 127 U. S. 265, 287. Besides, unless a State is 
exempt altogether from suit by the United States, we do not per- 
ceive upon what sound rule of construction suits brought by the 
United States in this court — especially if they be suits the correct 
decision of which depends upon the Constitution, laws, or treaties of 
the United States — are to be excluded from its original jurisdiction 
as defined in the Constitution. That instrument extends the judi- 
cial power of the United States "to all cases," in law and equity, 
arising under the Constitution, laws, and treaties of the United 
States, and to controveries in which the United States shall be a 
party, and confers upon this court original jurisdiction "in all 
cases" "in which a State shall be party," that is, in all cases men- 
tioned in the preceding clause in which a State may, of right, be 
made a party defendant, as well as in all cases in which a State 
may, of right, institute a suit in a court of the United States. The 
present case is of the former class. We cannot assume that the 
framers of the Constitution, while extending the judicial power of 
the United States to controversies between two or more States of 
the Union, and between a State of the Union and foreign States, 
intended to exempt a State altogether from suit by the general 
government. They could not have overlooked the possibility that 
controversies, capable of judicial solution, might arise between the 
United States and some of the States, and that the permanence of 
the Union might be endangered if to some tribunal was not intrusted 
the power to determine them according to the recognized principles 
of law. And to what tribunal could a trust so momentous be more 
appropriately committed than to that which the people of the 
United States, in order to form a more perfect Union, establish 
justice and insure domestic tranquillity, have constituted with au- 
thority to speak for all the people and all the States, upon questions 
before it to which the judicial power of the nation extends? It 
would be difficult to suggest any reason why this court should 
have jurisdiction to determine questions of boundary between two 
or more States, but not jurisdiction of controveries of like character 
between the United States and a State. * * * * 

The question as to the suability of one government by another 
government rests upon wholly different grounds. Texas is not call- 
ed to the bar of this court at the suit of an individual, but at the suit 
of the government established for the common and equal benefit of 
the people of all the States. The submission to judicial solution 
of controveries arising between these two governments, "each 
sovereign, with respect to the objects committed to it, and neither 
sovereign with respect to the objects committed to the other," 
McCulloch v. State of Maryland, 4 Wheat. 316, 400, 410, but both 
subject to the supreme law of the land, does no violence to the 
inherent nature of sovereignty. The States of the Union have 



192 Selected Cases in Constitutional Law. 

agreed, in the Constitution, that the judicial power of the United 
States shall extend to all cases arising under the Constitution, laws, 
and treaties of the United States, without regard to the character of 
the parties (excluding, of course, suits against a State by its own 
citizens or by citizens of other States, or by citizens or subjects of 
foreign States), and equally to controveries to which the United 
States shall be a party, without regard to the subject of such con- 
troveries, and that this court may exercise original jurisdiction in 
all such cases, "in which a State shall be a party," without excluding 
those in which the United States may be the opposite party. The 
exercise, therefore, by this court, of such original jurisdiction in a 
suit brought by one State against another to determine the boundary 
line between them, or in a suit brought by the United States against 
a State to determine the boundary between a Territory of the United 
States and that State, so far from infringing, in either case, upon 
the sovereignty, is with the consent of the State sued. Such con- 
sent was given by Texas when admitted into the Union upon an 
equal footing in all respects with the other States. * * * * 

(The court overruled the objection that a State could not be sued 
by the Federal Government.) 

Mr. Chief Justice Fuller, with whom concurred Mr. Justice 
Lamar, dissenting. 

Mr. Justice Lamar and myself are unable to concur in the deci- 
sion just announced. 

This court has original jurisdiction of two classes of cases only, 
those affecting ambassadors, other public ministers and consuls, and 
those in which a State shall be a party. 

The judicial power extends to "controversies between two or more 
States ;" "between a State and citizens of another State ;" and "be- 
tween a State or the citizens thereof, and foreign States, citizens or 
subjects." Our original jurisdiction, which depends solely upon the 
character of the parties, is confined to the cases enumerated, in which 
a State may be a party, and this is not one of them. 

The judicial power also extends to controversies to which the 
United States shall be a party, but such controversies are not in- 
cluded in the grant of original jurisdiction. To the controversy here 
the United States is a party. 

We are of opinion, therefore, that this case is not within the orig- 
inal jurisdiction of the court. 



SECTION III. 
The Law Administered by the Federal Courts. 

SWIFT v. TYSON. 

1 6 Peters, i. 1842. 

Suit was instituted in the Circuit Court of the United States by 
Swift, as indorsee of a bill of exchange, dated at Portland, Maine, 



Selected Cases in Constitutional Law. 193 

on May ist, 1836, and accepted by Tyson in New York Cify. It 
was claimed by Tyson that the consideration for the bill was a pre- 
existing debt, that such a consideration was not a valid one under 
the law of New York, that the acceptance having been made in New 
York the contract was to be considered as a New York contract, 
and therefore governed by the laws of that State, which laws were 
obligatory upon the Federal court. 

Mr. Justice Story delivered the opinion of the court. 

* * * In the present case, the plaintiff is a bona fide holder without 
notice for what the law deems a good and valid consideration, that is, 
for a pre-existing debt ; and the only real question in the cause is, 
whether, under the circumstances of the present case, such a pre- 
existing debt constitutes a valuable consideration in the sense of 
the general rule applicable to negotiable instruments. We say, 
under the circumstances of the present case, for the acceptance hav- 
ing been made in New York, the argument on behalf of the defend- 
ant is, that the contract is to be treated as a New York contract, 
and therefore to be governed by the laws of New. York, as expound- 
ed by its courts, as well upon general principles, as by the express 
provisions of the 34th section of the Judiciary Act of 1789, c. 20. 
And then it is further contended that, by the law of New York, as 
thus expounded by its courts, a pre-existing debt does not consti- 
tute, in the sense of the general rule, a valuable consideration appli- 
cable to negotiable instruments. * * * * 

But, admitting the doctrine to be fully settled in New York, it 
remains to be considered whether it is obligatory upon this court, if 
it differs from the principles established in the general commercial 
law. It is observable that the courts of New York do not found 
their decisions upon this point upon any local statute or positive, 
fixed or ancient local usage ; but they deduce the doctrine from the 
general principles of commercial law. It is, however, contended that 
the 34th section of the Judiciary Act of 1789, c. 20, furnishes a rule 
obligatory upon this court to follow the decisions of the State tribu- 
nals in all cases to which they apply. That section provides "that 
the laws of the several States, except where the Constitution, trea- 
ties, or statutes of the United States shall otherwise require or pro- 
vide, shall be regarded as rules of decision in trials at common law 
in the courts of the United States, in cases where they apply." In 
order to maintain the argument, it is essential, therefore, to hold 
that the word "laws," in this section, includes within the scope of 
its meaning the decisions of the local tribunals. In the ordinary 
use of language, it will hardly be contended that the decisions of 
courts constitute laws. They are, at most, only evidence of what 
the laws are, and are not of themselves laws. They are often re- 
examined, reversed, and qualified by the courts themselves, when- 
ever they are found to be either defective, or ill-founded or otherwise 
incorrect. The laws of a State are more usually understood to mean 
the rules and enactments promulgated by the legislative authority 
thereof, or long-established local customs having the force of laws. 



194 Selected Cases in Constitutional Law. 

In all the various cases, which have hitherto come before us for 
decision, this court has uniformly supposed that the true interpre- 
tation of the 34th section limited its application to State laws 
strictly local, that is to say, to the positive statutes of the State, 
and the construction thereof adopted by the local tribunals, and to 
rights and titles to things having a permanent locality, such as the 
rights and titles to real estate, and other matters immovable and 
intraterritorial in their nature and character. It never has been 
supposed by us that the section did not apply, or was designed to 
apply, to questions of a more general nature, not at all dependent 
upon local statutes or local usages of a fixed and permanent opera- 
tion, as, for example, to the construction of ordinary contracts or 
other written instruments, and especially to questions of general com- 
mercial law, where the State tribunals are called upon to perform 
the like functions as ourselves, that is, to ascertain, upon general 
reasoning and legal analogies, what is the true exposition of the con- 
tract or instrument, or what is the just rule furnished by the prin- 
ciples of commercial law to govern the case. And we have not now 
the slightest difficulty in holding that this section, upon its true in- 
tendment and construction, is strictly limited to local statutes and 
local usages of the character before stated, and does not extend to 
contracts and other instruments of a commercial nature, the true 
interpretation and effect whereof are to be sought, not in the deci- 
sions of the local tribunals, but in the general principles and doctrines 
of commercial jurisprudence. Undoubtedly, the decisions of the lo- 
cal tribunals upon such subjects are entitled to, and will receive, the 
most deliberate attention and respect of this court ; but they cannot 
furnish, positive rules, or conclusive authority, by which our own 
judgments are to be bound up and governed. The law respecting 
negotiable instruments may be truly declared, in the language of 
Cicero, adopted by Lord Mansfield in Luke v. Lyde, 2 Burr. P.. 882, 
887, to be in a great measure, not the law of a single country only, 
but of the commercial world. * * * * 

This question has been several times before this court, and it has 
been uniformly held, that it makes no difference whatsoever as to 
the rights of the holder, whether the debt, for which the negotiable 
instrument is transferred to him, is a pre-existing debt or is con- 
tracted at the time of the transfer. In each case, he equally gives 
credit to the instrument. The case of Coolidge v. Payson, 2 Wheat. 
66, 70, 73, and Townsley v. Sumrall, 2 Pet. 170, 182, are directly 
in point. 

We are all, therefore, of opinion that the question on this point, 
propounded by the Circuit Court for our consideration, ought to be 
answered in the negative ; and we shall accordingly direct it so to be 
certified to the Circuit Court. 



Selected Cases in Constitutional Law. 195 

SECTION IV. 

Suits Against a State by One of Its Citizens. 

HANS v. LOUISIANA. 

134 U. S,, 1. 1890. 

This suit was brought in the Circuit Court of the United States 
in Louisiana by Bernard Hans, a citizen of Louisiana, against the 
State of Louisiana to recover the amount of certain coupons, an- 
nexed to bonds issued by the State. The plaintiff contended that 
he, being a citizen of Louisiana, could maintain suit against the 
State, as the nth Amendment to the Constitution prohibited only 
suits against a State which were brought by citizens of another 
State, or by citizens or subjects of a foreign State. The question 
was raised also as to the right of the State to impair the obligation 
of its own contract. The State appeared and excepted to the suit 
on the ground that a State could not be sued without its permission, 
^nd asked that the case be dismissed. 

Mr. Justice Bradley delivered the opinion of the court : 
* * * * The q Liest i on [ s presented, whether a State can be sued in 
-a. Circuit Court of the United States by one of its own citizens upon 
a suggestion that the case is one that arises under the Constitution 
or laws of the United States. 

The ground taken is, that under the Constitution, as well as 
under the act of Congress passed to carry it into effect, a case is 
within the jurisdiction of the Federal courts, without regard to the 
character of the parties, if it arises under the Constitution or laws 
of the United States, or which is the same thing, if it necessarily 
involves a question under said Constitution or laws. The language 
relied on is that clause of the 3d article of the Constitution which 
'declares that "the judicial power of the United States shall extend 
to all cases in law and equity arising under this Constitution, the 
laws of the United States, and treaties made, or which shall be 
made, under their authority ;" and the corresponding clause of the 
act conferring jurisdiction upon the Circuit Court, which, as found 
in the act of March 3, 1875, is as follows, to wit: "That the Circuit 
Courts of the United States shall have original cognizance, concur- 
rent with the courts of the several States, of all suits of a civil na- 
ture at common law or in equity, ... .arising under the Constitu- 
tion or laws of the United States, or treaties made, or which shall 
be made, under their authority." It is said that these jurisdictional 
clauses make no exception arising from the character of the parties, 
and, therefore, that a State can claim no exemption from suit, if 
the case is really one arising under the Constitution, laws, or treaties 
of the United States. It is conceded that where the jurisdiction de- 
pends alone upon the character of the parties, a controversy between 
a State and its own citizens is not embraced within it ; but it is con- 
tended that though jurisdiction does not exist on that ground, it 
nevertheless does exist if the case itself is one which necessarily in- 



196 Selected Cases in Constitutional Law. 

volves a Federal question ; and with regard to ordinary parties this 
is undoubtedly true. The question now to be decided is, whether it 
is true where one of the parties is a State, and is sued as a defend- 
ant by one of its own citizens. 

That a State cannot be sued by a citizen of another State, or of a 
foreign .State, on the mere ground that the case is one arising under 
the Constitution or laws of the United States, is clearly established 
by the decisions of this court in several recent cases. Louisiana v. 
Jumel, 107 U. S. 711. This was a case arising under the Consti- 
tution of the United States, upon laws complained of as impairing 
the obligation of contracts, one of which was the constitutional 
amendment of Louisiana complained of in the present case. Relief 
was sought against State officers who professed to act in obedience 
to those laws. This court held that the suits were virtually against 
the States themselves and were consequently violative of the Elev- 
enth Amendment of the Constitution and could not be maintained. 
It was not denied that they presented cases arising under the Con- 
stitution ; but, notwithstanding that, they were held to be prohibited 
by the amendment referred to. 

In the present case the plaintiff in error contends that he, being 
a citizen of Louisiana, is not embarrassed by the obstacle of the 
Eleventh Amendment, inasmuch as that amendment only prohibits 
suits against a State which are brought by the citizens of another 
State, or by citizens or subjects of a foreign State. It is true, the 
amendment does so read: and if there were no other reason or 
ground for abating his suit, it might be maintainable ; and then we 
should have this anomalous result, that in cases arising under the 
Constitution or laws of the United States, a State may be sued in 
the Federal courts by its own citizens, though it cannot be sued for 
a like cause of action by the citizens of other States or of a for- 
eign State ; and may be thus sued in the Federal courts, although not 
allowing itself to be sued in its own courts. If this is the necessary 
consequence of the language of the Constitution and the law, the 
result is no less startling and unexpected than was the original de- 
cision of this court, that under the language of the Constitution and 
of the Judiciary Act of 1789, a State was liable to be sued by a citi- 
zen of another State, or of a foreign country. That decision was 
made in the case of Chisholm v. Georgia, 2 ball. 419, and created 
such a shock of surprise throughout the country that, at the first 
meeting of Congress thereafter, the Eleventh Amendment to the 
Constitution was almost unanimously proposed, and was in due- 
course adopted by the legislatures of the States. This amendment, 
expressing the will of the ultimate sovereignty of the whole coun- 
try, superior to all legislatures and all courts, actually reversed the 
decision of the Supreme Court. It did not in terms prohibit suits 
by individuals against the States, but declared that the Constitution 
should not be construed to import any power to authorize the bring- 
ing of such suits. The language of the amendment is that "the ju- 
dicial power of the United States shall not be construed to extend 
to any suit in law or equity, commenced or prosecuted against one 



Selected Cases in Constitutional Law. 197 

•of the United States by citizens of another State or by citizens or 
subjects of any foreign State." The Supreme Court had construed 
the judicial power as extending to such a suit, and its decision was 
thus overruled. * * ■ * * 

The suability of a State without its consent was a thing unknown 
to the law. This has been so often laid down and acknowledged by 
courts and jurists that it is hardly necessary to be formally asserted. 
It was fully shown by an exhaustive examination of the old law 
by Mr. Justice Iredell in his opinion in Chisholm v. Georgia ; and it 
has been conceded in every case since, where the question has, in 
any way, been presented, even in the cases which have gone farthest 
in sustaining suits against the officers or agents of States. In all 
these cases the effort was to show, and the court held, that the suits 
were not against the State or the United States, but. against the in- 
dividuals ; conceding that if they had been against either the State 
or the United States, they could not be maintained. * * * * 

Undoubtedly a State may be sued by its own consent, as was the 
case in Curran v. Arkansas, 15 How. 304, 309, and in Clark v. 
Barnard, 108 U. S. 436, 447. The suit in the former case was pros- 
ecuted by virtue of a State law which the legislature passed in con- 
formity to the constitution of that State. But this court decided, 
in Beers v. Arkansas, 20 How. 527, that the State could repeal 
that law at any time ; that it was not a contract within the terms 
of the Constitution prohibiting the passage of State laws impair- 
ing the obligation of a contract. In that case the law allowing 
the State to be sued was modified pending certain suits against the 
State on its bonds, so as to require the bonds to be filled' in court, 
which was objected to as an unconstitutional change of the law. 
Chief Justice Taney, delivering the opinion of the court, said : "It 
is an established principle of jurisprudence in all civilized nations 
that the sovereign cannot be sued in its own courts, or in any oither, 
without its consent and permission ; but it may, if it thinks proper, 
waive this privilege and permit itself to be made a defendant in a 
suit by individuals, or by another State. And as this permission is 
altogether voluntary on the part of the sovereignty, it follows that 
it may prescribe the terms and conditions on which it consents to be 
sued, and the manner in which the suit shall be conducted, and may 
withdraw its consent whenever it may suppose that justice to the 
public requires it. . . The prior law was not a contract. It was 
an ordinary act of legislation, prescribing the conditions upon which 
the State consented to waive the privilege of sovereignty. It con- 
tained no stipulation that these regulations should not be modified 
afterwards if, upon experience, it was found that further provisions 
were necessary to protect the public interest ; and no such contract 
can be implied from the law, nor can this court inquire whether the 
law operated hardly or unjustly upon the parties whose suits were' 
then pending. That was a question for the consideration of the 
legislature. They might have repealed the prior law altogether, 
and put an end to the jurisdiction of their courts in suits against the 
.State, if they had thought proper to do so, or prescribe new condi- 



198 Selected Cases in Constitutional Law. 

tions upon which the suits might still be allowed to proceed. In 
exercising this power the State violated no contract with the par- 
ties." 

But besides the presumption that no anomalous and unheard-of 
proceedings or suits were intended to be raised up by the Constitu- 
tion — anomalous and unheard-of when the Constitution was adopted 
— an additional reason why the jurisdiction claimed for the Circuit 
Court does not exist, is the language of the act of Congress by 
which its jurisdiction is conferred. The words are these: "The 
Circuit Courts of the United States shall have original cognizance, 
concurrent with the courts of the several States, of all suits of a 
civil nature at common law or in equity, . . . arising under the 
Constitution or laws of the United States, or treaties," &c, "con- 
current with the courts of the several States." Does not this quali- 
fication show that Congress, in legislating to carry the Constitution 
into effect, did not intend to invest its courts with any new and 
strange jurisdictions? The State courts have no power to enter- 
tain suits by individuals against a State without its consent. Then 
how does the Circuit Court, having only concurrent jurisdiction, ac- 
quire any such power? * * * * 

To avoid misapprehension it may be proper to add that, although 
the obligations of a State rest for their performance upon its honor 
and good faith, and cannot be made the subjects of judicial cogni- 
zance unless the State consents to be sued, or comes itself into* 
court ; yet where property or rights are enjoyed under a grant or 
contract made by a State, they cannot wantonly be invaded. While 
the State cannot be compelled by suit to perform its contracts, any 
attempt on its part to violate property or rights acquired under it§ 
contracts may be judicially resisted ; and any law impairing the 
obligation of contracts under which such property or rights are held 
is void and powerless to affect their enjoyment. 

It is not necessary that we should enter upon an examination of 
the reason or expediency of the rule which exempts a sovereign State 
from prosecution in a court of justice at the suit of individuals, 
This is fully discussed by writers on public law. It is enough for 
us to declare its existence. The legislative department of a State 
represents its polity and its will ; and is called upon by the highest 
demands of natural and political law to preserve justice and judg- 
ment, and to hold inviolate the public obligations. Any departure 
from this rule, except for reasons most cogent (of which the legisla- 
ture, and not the courts, is the judge), never fails in the end to in- 
cur the odium of the world, and to bring lasting injury upon the 
State itself. But to deprive the legislature of the power of judging- 
what the honor and safety of the State may require, even at the ex- 
pense of a temporary failure to discharge the public debts, would be- 
attended with greater evils than such failure can cause. 

Affirmed. 

Note. See also New Hampshire v. Louisiana,, page 183. 



Selected Cases in Constitutional Law. 199 

SECTION V. 
The Power of the Courts to Declare an Act of the Legislature 

Null and Void, 
i. As to Acts of Congress. 
Marbury v. Madison, page. 21. 
Hepburn v. Griszvold, page 143. 
Pollock v. Farmers' loan and Trust Company, page 71. 

2. As to Acts of State Legislatures. 

M'Culloch v. Maryland, page 60. 
Gibbons v. Ogden, page 78. 
Brown v. Maryland, page 107. 



200 Selected Cases in Constitutional Law. 



CHAPTER IV. 

PRIVILEGES AND IMMUNITIES GUARANTEED BY THE 
CONSTITUTION. 

SECTION I. 

Trial by Jury. 

EX PARTE MILLIGAN. 

4 Wallace, 2, 1866. 

On the 10th day of May, 1869, Lambdin P. Milligan presented a 
petition to the Circuit Court of the United States for the District 
of Indiana in which he prayed that he be discharged from an alleged 
unlawful imprisonment. The facts of the case were as follows : Mil- 
ligan was a citizen of the United States and a resident for twenty 
years of the State of Indiana. He was not, nor ever had been, in the 
military or naval service of the United States. While at his home, 
on the 5th day of October, 1864, he was arrested by order of Gen- 
eral Hovey, commanding the military district of Indiana, and con- 
fined in a military prison near Indianapolis. On the 2 1st day of Oc- 
tober, 1864, he was brought before a military commission, conven- 
ed at Indianapolis, by order of General Hovey, was tried on the 
charge of conspiracy against the Government of the United States, 
affording aid and comfort to rebels against the authority of the 
United States, and other charges. He was found guilty and sen- 
tenced to be hanged. The sentence was approved by the President 
of the United States. On the 2nd day of January, 1865, after the 
proceedings of the military commission were at an end, the Circuit 
Court of the United States for Indiana met at Indianapolis and em- 
panelled a grand jury, who were charged to inquire whether the 
laws of the United States had been violated. The court adjourned 
January 27th, 1865, and discharged the jury from further service. 
No bill of indictment or presentment was found against Milligan, 
for any offense whatever by the grand jury. Milligan insisted that 
the military commission had no jurisdiction to try him, that he had 
not been a citizen of any of the States arrayed against the govern- 
ment, and that the right of trial by jury was guaranteed to him by 
the Constitution of the United States. 

Mr. Justice Davis delivered the opinion of the couirt. 

. . . The discipline necessary to the efficiency of the army and 
navy requires other and swifter modes of trial than are furnished by 
the common law courts ; and, in pursuance of the power conferred 
by the Constitution, Congress has declared the kinds of trial, and 
the manner in which thev shall be conducted, for offenses commit- 



Selected Cases in Constitutional Law. 201 

ted while the party is in the military or naval service. Every one 
connected with these branches of the public service is amenable to 
the jurisdiction which Congress has created for their government, 
and while thus serving, surrenders his right to be tried by the civil 
courts. All other persons, citizens of States where the courts are 
open, if charged with crime, are guaranteed the inestimable privi- 
lege of trial by jury. This privilege is a vital principle, underlying 
the whole administration of criminal justice ; it is not held by suf- 
ferance, and cannot be frittered away on any plea of State or po- 
litical necessity. When peace prevails, and the authority of the gov- 
ernment is undisputed, there is no difficulty of preserving the safe- 
guards of liberty ; for the ordinary modes of trial are never neglect- 
ed, and no one wishes it otherwise ; but if society is disturbed by 
civil commotion — if the passions of men are aroused and the re- 
straints of law weakened, if not disregarded — these safeguards need, 
and should receive the watchful care of those intrusted with the 
guardianship of the Constitution and laws. It is claimed that mar- 
tial law covers with its broad mantle the proceedings of this military 
commission. The proposition is this : that in a time of war the 
commander of an armed force * * * has the power, within the lines 
of his military district to suspend all civil rights and their remedies, 
and subject citizens as well as soldiers, to the rule of his will; and 
in the exercise of his lawful authority cannot be restrained, except 
by his superior officer or the President of the United States. If 
this position is sound to the extent claimed, then when war exists, 
foreign or domestic, and the country is subdivided into military de- 
partments for mere convenience, the commander of each one of 
them can, if he chooses, within his limits, on the plea of necessity, 
with the approval of the Executive, substitute military force for and 
to the exclusion of the laws, and punish all persons, as he thinks 
right and proper, without fixed or certain rules. The statement of 
this proposition shows its importance, for, if true, republican gov- 
ernment is a failure, and there is an end of liberty regulated by law 
* * * Civil liberty and this kind of martial law cannot endure to- 
gether ; the antagonism is irreconciliable ; and, in the conflict, 
one or the other must perish * * * The necessities of the service, dur- 
ing the late Rebellion, required that the loyal States should be plac- 
ed within the limits of certain military districts and commanders 
appointed in them ; and, it is urged, that this, in a military sense, 
constituted them the theatre of military operations ; and, as in this 
case, Indiana has been and was again threatened with invasion by 
the enemy, the occasion was furnished to established martial law. 
The conclusion does not follow from the premises. If armies were 
collected in Indiana, they were to be employed in another locality, 
where the laws were obstructed and the national authority disputed. 
On her soil there was no hostile foot; if once invaded, that inva- 
sion was at an end, and with it all pretext for martial law. Martial 
law cannot arise from a threatened invasion. The necessity must 
be actual and present ; the invasion real, such as effectually closes 
the courts and deposes the civil administration. It is difficult to see 



202 Selected Cases in Constitutional Law. 

how the safety of the country required martial law in Indiana. If 
any of her citizens were plotting treason, the power of arrest could 
secure them, until the government was prepared for their trial, when 
the courts were open and ready to try them. It was as easy to pro- 
tect witnesses before a civil as well as a military tribunal ; and as 
there could be no wish to convict, except on sufficient legal evidence, 
surely an ordained and established court was better able to judge of 
this than a military tribunal composed of gentlemen not trained to 
the profession of the law. 

The prisoner zvas disclmrged. 
See also Hawaii v. Mankichi, page 159. 



SECTION II. 

CIVIL RIGHTS. 

CIVIL RIGHTS CASES. 

109 U. S., 3- 1883. 

The Act of Congress of March 1, 1875, known as the Civil Rights 
Act, made it a criminal offense for any person to deny any citizen 
on account of race or color the full and equal enjoyment of the priv- 
ileges and accommodations of inns, public conveyances, theatres, 
and other places of public amusement. Certain persons were in- 
dicted for violations of this act, and carried these cases to the Su- 
preme Court of the United States in order to test the constitution- 
ality of this act, their contention being that, as the Constitution and 
its Amendments do not authorize Congress to regulate private rights, 
the indictments under the act of 1875 were void. The government 
contended that the act was authorized by the 1st section of he 
Fourteenth Amendment, which declares, "No State shall make or 
enforce any law which shall abridge the privileges and immunities 
of the citizens of the United States ; nor shall any State deprive 
any person of life, liberty or property without due process of law ; 
nor deny to any person within its jurisdiction the equal protection 
of the laws." 

Mr. Justice Bradley, speaking in reference to the 1st section of 
the Fourteenth Amendment, says: 

It is State action of a particular character that is prohibited. In- 
dividual invasion of individual rights is not the subject-matter of 
the amendment. It has a deeper and broader scope. It nullifies and 
makes void all State legislation, and State action of every kind, which 
impairs the privileges and immunities of citizens of the United 
States, or which injures them in life, liberty, or property without 
due process of law, or which denies to any of them the equal pro- 
tection of the laws. It not only does this, but, in order that the na- 



Selected Cases in Constitutional Law. 203- 

tionai will, thus declared, may not be a mere 'brutum fulmen, the 
last section of the amendment invests Congress with power to en- 
force it by appropriate legislation. To enforce what? To enforce 
the prohibition. To adopt appropriate legislation for correcting the 
effects of such prohibited State laws and State acts, and thus to ren- 
der them effectually null, void, and innocuous. This is the legis- 
lative power conferred upon Congress, and this is the whole of it. 
It does not invest Congress with power to legislate upon subjects 
which are within the domain of State legislation ; but to provide 
modes of relief against State legislation, or State action, of the 
kind referred to. It does not authorize Congress to create a code of 
municipal law for the regulation of private rights ; but to provide 
modes of redress against the operation of State laws, and the action 
of Siate officers, executive or judicial, when these are subversive of 
the fundamental rights specified in the amendment. Positive rights 
and privileges are undoubtedly secured by the fourteenth amend- 
ment ; but they are secured by way of prohibition against State laws 
and State proceedings affecting those rights and privileges, and by 
power given to Congress to legislate for the purpose of carrying 
such piohibition into effect: and such legislation must necessarily 
be predicated upon such supposed State laws or State proceedings, 
and be directed to the correction of their operation and effect. 

In the present case, until some State law has been passed, or some 
State action through its officers or agents has been taken, adverse to 
the rights of citizens sought to be protected by the fourteenth 
amendment, no legislation of the United States under said amend- 
ment, nor any proceeding under such legislation, can be called into 
activity ; for the prohibitions of the amendment are against State 
laws and acts done under State authority. Of course, legislation 
may, and should be, provided in advance to meet the exigency when 
it arises ; but it should be adapted to the mischief and wrong which 
the amendment was intended to provide against ; and that is, State 
laws, or State action of some kind, adverse to the rights of the citi- 
zen secured by the amendment. Such legislation cannot properly 
cover the whole domain of rights appertaining to life, liberty and 
property, defining them and providing for their vindication. That 
would be to establish a code of municipal law regulative of all pri- 
vate rights between man and man in society. It woud be to make 
Congress take the place of the State legislatures and to supersede 
them. It is absurd to affirm that, because the rights of life, liberty 
and property (which include all civil rights that men have), are by 
the amendment sought to be protected against invasion on the part 
of the State without due process of law, Congress may therefore 
provide due process of law for their vindication in every case ; and 
that, because the denial by a State to any persons of the equal pro- 
tection of the laws is prohibited by the amendment, therefore Con- 
gress may establish laws for their equal protection. In fine, the leg- 
islation which Congress is authorized to adopt in this behalf is not 
general legislation upon the rights of the citizen, but corrective leg- 
islation, that is, such as may be necessary and proper for counter- 



204 Selected Cases in Constitutional Law. 

acting such laws as the States may adopt or enforce, and which, by 
the amendment, they are prohibited from making or enforcing, or 
such acts and proceedings as the States may commit or take, and 
which, by the amendment, they are prohibited from committing or 
taking. 

(The court comes to the conclusion that the act in question is not 
directed against State action, and therefore is not within the power 
conferred on Congress by the amendment.) 



SECTION III. 
OTHER RIGHTS. 

See cases grouped under Chapter II, Section VIII, Restrictions 
on the Powers of Congress. 



Selected Cases in Constitutional Law. 206 



CHAPTER V. 
STATE COMITY. 

SECTION I. 

Full Faith and Credit shall be given to the Acts, Records and Judg- 
ments of another State. 

HANLEY v. DONOGHUE. 
116 U. S., i. 1885. 

Michael Hanley and William P. Welch recovered a judgment in 
the State of Pennsylvania against two joint defendants, Charles 
Donoghue, who had been duly summoned to appear before the court, 
and John Donoghue, who had not been duly summoned. The prop- 
erty of the latter had been attached by the plaintiffs. This judgment 
was valid and enforceable by the laws of Pennsylvania. Hanley and 
Welch sued Charles Donoghue on this judgment in Maryland, but 
the lower court refused to consider the judgment as binding upon 
it and gave judgment for Donoghue. This judgment was affirmed 
by the highest court of the State. Hanley and Welch then appealed 
the case to the United States Supreme Court on the ground that 
they were denied a right and privilege to which they are entitled 
under Art. IV, sec. 1, of the Constitution of the United States, which 
declares that "full faith and credit shall be given in each State to 
the public acts, records and judicial proceedings of every other 
State ; and the Congress may by general laws prescribe the man- 
ner in which such acts, records and proceedings shall be proved and 
the effect thereof." 

By the settled construction of these provisions of the Constitution 
and statutes of the United States, a judgment of a State court, in a 
cause within its jurisdiction, and against a defendant lawfully sum- 
moned, or against lawfully attached property of an absent defendant, 
is entitled to as much force and effect against the person summoned 
or the property attached, when the question is presented for decision 
in a court of another State, as it has in the State in which it was 
rendered. And it is within the power of the legislature of a State 
to enact that judgments which shall be rendered in its courts in ac- 
tions against joint defendants, one of whom has not been duly serv- 
ed with process, shall be valid as to those who have been so served, 
or who have appeared in the action. * * * * 

No court is to be charged with the knowledge of foreign laws ; 
but they are well understood to be facts, which must, like other facts, 
be proved before they can be received in a court of justice. It is 
equally well settled that the several States of the Union are to be 
considered as in this respect foreign to each other, and that the 



208 Selected Cases in Constitutional Law. 

courts of one State are not presumed to know, and therefore not 
bound to take judicial notice of, the laws of another State. * * * * 

Judgments recovered in one State of the Union, when proved in 
the courts of another, differ from judgments recovered in a foreign 
country in no other respect than that of not being re-examinable 
upon the merits, nor impeachable for fraud in obtaining them, if 
rendered by a court having jurisdiction of the cause of the parties. 

Congress, in the execution of the power conferred upon it by the 
Constitution, having prescribed the mode of attestation of records of 
the courts of one State to entitle them to be proved in the courts of 
another State, and having enacted that records so authenticated shall 
have such faith and credit in every court within the United States 
as they have by law or usage in the State from which they are taken, 
a record of a judgment so authenticated doubtless proves itself with- 
out further evidence ; and if it appears upon its face to be a record 
of a court of general jurisdiction, the jurisdiction of the court over 
the cause and the parties is to be presumed unless disproved by ex- 
trinsic evidence or by the record itself. Knowles v. Gaslight & Coke 
Co., 19 Wall. 58. But Congress has not undertaken to prescribe in 
what manner the effect that such judgments have in the courts of the 
State in which they are rendered shall; be ascertained, and has left 
that to be regulated by the general rules of pleading and evidence 
applicable to the subject. 

Upon principle, therefore, and according to the great preponder- 
ance of authority, whenever it becomes necessary for a court of one 
State, in order to give full faith and credit to a judgment rendered 
in another State, to ascertain the effect which it has in that State, 
the law of that State must be proved, like any other matter of fact. 

-jji sj« sjt :js 

When exercising an original jurisdiction under the Constitution 
and laws of the United States, this court, as well as every other 
court of the national government, doubtless takes notice, without 
proof, of the laws of each of the United States. 

But in this court, exercising an appellate jurisdiction, whatever 
was matter of law in the court appealed from is matter of law here, 
and whatever was matter of fact in the court appealed from is mat- 
ter of fact here. 

In the exercise of its general appellate jurisdiction from a lower 
court of the United States, this court takes judicial notice of the 
laws of every State of the Union, because those laws are known to 
the court below as laws alone, needing no averment or proof. 

But on a writ of error to the highest court of a State, in which the 
revisory power of this court is limited to determining whether a 
question of law depending upon the Constitution, laws, or treaties of 
the United States has been erroneously decided! by the State court 
upon the facts before it, — while the law of that State, being known 
to its courts as law, is of course within the judicial notice of this 
court at the hearing on error, — yet, as in the State court the laws of 
another State are but facts, requiring to be proved in order to be 
'considered, this court does not take judicial notice of them, unless 



Selected Cases in Constitution al Law. 207 

made part of the record sent up, as in Green v. Van Buskirk, 7 Wall. 
139. The case comes, in principle, within the rule laid down long 
ago by Chief Justice Marshall : "That the laws of a foreign nation, 
designed only for the direction of its own affairs, are not to be no- 
ticed by the courts of other countries, unless proved as facts, and 
that this court, with respect to facts, is limited to the statement made 
in the court below, cannot be questioned." Talbot v. Seeman, 1 
Cranch, 1, 38. 

Where by the local law of a State (as in Tennessee, Hobbs v. 
Memphis & C. R. Co., 9 Heisk. 873) its highest court takes judi- 
cial notice of the laws of other States, this court also, on writ of 
error, might take judicial notice of them. But such is not the case 
in Maryland, where the Court of Appeals has not only affirmed the 
general rule that foreign laws are facts, which, like other facts, 
must be proved before they can be received in evidence in courts 
of justice; but has held that the effect which a judgment rendered 
in another State has by the law of that State is a matter of fact, not 
to be judicially noticed without allegation and proof ; and conse- 
quently that an allegation of the effect which such a judgment has 
by law in that State is admitted by demurrer. 

From these considerations it follows that the averment, in the 
third count of the declaration, that by the law of Pennsylvania the 
judgment rendered in that State against Charles Donoghue and John 
Donoghue was valid and enforceable against Charles, who had been 
served with process in that State, and void against John, who had 
not been so served, must be considered, both in the courts of Mary- 
land, and in this court on writ of error to one of those courts, an 
allegation of fact, admitted by the demurrer. 

Upon the record before us, therefore, the plaintiff appears to be 
entitled, under the Constitution and laws of the United States, to 
judgment on this count. The general judgment for the defendant 
is erroneous, and the rights of both parties will be secured by or- 
dering, in the usual form, that the 

Judgment of the Court oi Appeals of Maryland be reversed, 
and the case remanded to that court for further proceedings 
not inconsistent with this opinion. 



SECTION II. 

Privileges and Immunities of Citizens. 

CORFIELD v. CORYELL. 

4 Wash. C. C, 371. 1823. 

In 1820 the State of New Jersey passed an act regulating the busi- 
ness of dredging of oysters. This act excluded the inhabitants and 
residents of other States from the privilege of taking or gathering 



208 Selected Cases in Constitutional Law. 

oysters in any of the rivers, bays and waters of the State. One of 
the penalties provided by the statute was the forfeiture of the boat 
and apparatus used by any non-resident in gathering oysters in vio- 
lation of the statute. 

The defendant, one of the constables of Cumberland County, ar- 
rested the plaintiff, a non-resident of New Jersey, whom they found, 
gathering oysters in Maurice River Cove, and seized his boat and 
sold it. The plaintiff brought an action of trespass for the taking of 
his property in the United States Circuit Court for the Eastern 
District of Pennsylvania. The plaintiff contended that the New 
Jersey act of 1820 infringes that section of the Constitution of the 
United States which declares that "the citizens of each State shall 
be entitled to all the privileges and immunities of citizens in the sev- 
eral States." 

Was ngton, Circuit Justice, delivered the opinion of the 
court. 

The inquiry is, what are the privileges and immunities of citi- 
zens in the several States ? We feel no hesitation in confining these 
expressions to those privileges and immunities which are, in their 
nature, fundamental; which belong, of right, to the citizens of all 
free governments, and which have, at all times, been enjoyed by the 
citizens of the several States which compose this Union from the 
time of their becoming free, independent, and sovereign. What 
these fundamental principles are, it would perhaps be more tedious 
than difficult to enumerate. They may, however, be comprehended 
under the following general heads : Protection by the government ; 
the enjoyment of life and liberty, with the right to acquire and pos- 
sess property of every kind, and to pursue and obtain happiness and 
safety ; subject nevertheless to such restraints as the government may 
justly prescribe for the general good of the whole. The right of a 
citizen of one State to pass through or to reside in any other State 
for the purposes of trade, agriculture, professional pursuits or oth- 
erwise ; to claim the benefit of the writ of hdbeas corpus ; to institute 
and maintain actions of any kind in the courts of the State ; to take, 
hold, and dispose of property, either real or personal ; and an exemp- 
tion from higher taxes or impositions than are paid by the other cit- 
izens of the State, may be mentioned as some of the particular priv- 
ileges and immunities of citizens, which are clearly embraced by the 
general description of privileges deemed to be fundamental ; to 
which may be added, the elective franchise, as regulated and estab- 
lished by the laws or constitution of the State in which it is to be 
exercised. These, and many others which might be mentioned, are, 
strictly speaking, privileges and immunities, and the enjoyment of 
them by the citizens of each State in every other State was mani- 
festly calculated (to use the expression of the preamble to the cor- 
responding provision in the old Articles of Confederation) 'the 
better to secure and perpetuate mutual friendship and intercourse 
among the people of the different States of the Union." But we 
cannot accede to the proposition which was insisted on bv the coun- 



Selected Cases in Constitutional. Law. 209 

sel, that, under this provision of the Constitution, the citizens of the 
several States are permitted to participate in all the rights which 
belong exclusively to the citizens of any other particular State, mere- 
ly upon the ground that they are enjoyed by those citizens ; much 
less, that in regulating the use of the common property of the citi- 
zens of such State, the legislature is bound to extend to the citizens 
of all the other States the same advantages as are secured to their 
own citizens. A several fishery, either as the right to its respects 
running fish, or such as are stationary, such as oysters, clams and 
the like, is as much the property of the individual to whom it be- 
longs as dry land or land covered by water ; and is equally protect- 
ed by the laws of the State against the aggressions of others ; wheth- 
er citizens or strangers. Where those private rights do not exi r 
to the exclusion of the common right, that of fishing belongs to 
the citizens or subjects of the State. It is the property of ; ; to be 
enjoyed by them in subordination to the laws which regulate its use. 
They may be considered tenants in common of this property ; and 
they are so exclusively entitled to the use of it, that it cannot be 
enjoyed by others without the tacit consent on the express permis- 
sion of the sovereign who has the power to regulate its use. . . . 
The oyster beds belonging to a State may be abundantly sufficient 
for the use of the citizens of that State, but might be totally exhaust- 
ed and destroyed if the legislature could not so regulate the use of 
them as to exclude the citizens of the other States from taking them, 
except under such limitations and restrictions as the laws may pre- 
scribe." Judgment entered for defendant. 



SECTION III. 

Extradition Between States. 

KENTUCKY r. DENNISON. 

24 Howard, 66. i860. 

Willis Lago.a free negro resident of Kentucky, assisted a slave toes- 
scape and then he,himself,fled to Ohio. Lago's act being a crime under 
the laws of Kentucky, the Governor of Kentucky demanded him as 
a fugitive from justice to be delivered up by the Governor of Ohio. 
The demand was refused, whereupon Kentucky brought suit in the 
United States Supreme Court asking for a mandamus to compel 
Dennison, the Governor of Ohio, to deliver Lagfo to the State au- 
thorities. Kentucky claimed that the matter in dispute was covered 
by Art. IV, sec. 2, of the Constitution of the United States, which 
reads thus : "A person charged in any State with treason, felony, 
or other crime, who shall flee from justice and be found in another 
State, shall on demand of the Executive authority of the State from 



210 Selected Cases in Constitutional Law. 

which he fled, be delivered up, to he removed to the State having 
jurisdiction of the crime." To execute this obligation of the Con- 
stitution, the act of Congress of 1793 was passed, which provides: 
"It shall be the duty of the executive authority of the State or Ter- 
ritory to which such person shall have fled," to cause him or her 
to be arrested and secured, and notice of the arrest to be given to 
the executive authority making such demands, or to the agent of 
such authority appointed to receive the fugitive to be delivered to 
such agent when he shall appear." 

Mr. Chief Justice Taney delivered the opinion of the court. 

The clause (of the Constitution) in question. . .authorizes the de- 
mand to be made by the Executive authority of the State where the 
crime was committed, but does not in so many words specify the 
officer of the State upon whom the demand is to be made, and whose 
duty it is to have the fugitive delivered and removed to the State 
having jurisdiction of the crime. * * * * 

The demand being thus made, the Act of Congress declares, that, 
"it shall be the duty of the Executive authority of the State," to 
cause the fugitive to be arrested and secured and delivered to the 
agent of the demanding State. The words, "it shall be the duty," in 
ordinary legislation, imply the assertion of the power to command 
and to coerce obedience. But looking to the subject matter of this 
law, and the relations which the United States and the several States 
bear to each other, the court is of the opinion, the words "it shall 
be the duty" were not used as mandatory and compulsory, but as 
declaratory of the moral duty which this compact created, when 
Congress had provided the mode of carrying it into execution. The 
act does not provide any means to compel the execution of this duty,, 
nor inflict any punishment for neglect or refusal on the part of the 
Executive of the State ; nor is there any clause or provision in the 
Constitution which arms the government of the United States with 
this power. Indeed, such a power would place every State under 
the control and dominion of the General Government, even in the 
administration of its internal concerns and reserved rights. And we 
think it clear, that the Federal Government, under the Constitution, 
has no power to impose on a State officer, as such, any duty what- 
ever, and compel him to perform it ; for if it possessed this power- 
it might overload the officer with duties which would fill up all his 
time, and disable him from performing his obligations to the State,, 
and might impose upon him duties of a character incompatible with 
the rank and dignity to which he was elevated by the State. 

It is true that Congress may authorize a particular State officer 
to perform a particular duty; but if he declines to do so, it does not 
follow that he may be coerced or punished for his refusal. And 
we are far from supposing, that in using the word "duty," the states- 
men who framed and passed the law, or the President who approv- 
ed and signed it, intended to exercise a coercive power over State 
officers not warranted by the Constitution. 

The motion for the mandamus must be overruled. 



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